Vietnam Criminal Defense Manual - Motions to aid the defense
Motions are formal requests submitted to the court. A well written motion is both a request and informative. Based on law and fact, motions are constructed carefully so that they reflect both the applicable law and your intellect. In other words, motions should be, first, a reflection of the laws that apply to your client's case, and second, a reflection of your skills as a legal defender. The motion should be clear and precise for the relief requested.
Be warned, not all requests made by motion will be granted. Do not be discouraged. A motion preserves the issue for appeal to a higher court. Disagreements in the legal arena are not unusual. What is important is dedication and hard work for the purpose of upholding the law and the protection of your client's rights.
Topics for Effective Motions
Below are some topics for fast, effective motions in a criminal case.
Dismissal of the charging document
- Defects in the charge
- The charge is not a crime
- The law has changed
- The conduct is protected by other laws
- There was no criminal offense
- The act was not a crime
- The accused was under the age to bear criminal responsibility
- The time limit for prosecution has expired
- The accused was previously granted amnesty
Practice Tip No. 14:
Arguing that the charging document is insufficient or unlawful strikes at the heart of the prosecutor's case. Asking that the charges to be dismissed based on a flawed charge is bold, but it is supported by the law. See, CPC, Article 107
Access to your client
- A first visit
- Regular visits
- Private visits
- Ability to review documents
- Expert examination of your client
Detention
- Detention exceeds the legal limit
- There is no risk of flight
- There is no risk to the community
- Family and/or business associates are ready to supervise
- Client is employed
- Client requires medical care
- Client is responsible for the care of children or elderly
- Client is either to young or too old to be safely detained
Practice Tip No. 15:
The legal limits to detain suspects are very specific. See, CPC, Article 120, stating the detention limits in different cases.
Access to evidence
- Statements
- Expert opinions
- Physical evidence
- The crime scene
- Photos, videos, recordings
- Diagrams
- Witness contact information
- Employment records of police officers
Practice Tip No. 16:
A fair investigation and a fair trial are fixed in the Constitution. To protect legal rights, a fair trial and the search for truth, the legal defender should be able to view all the same discovery as the prosecution. See, CPC, Articles 74-76, establishing a protocol to use when handling material evidence.
Suppression of evidence
- Violations of protocol
- The warrant failed to include the proper information
- Boundaries of the search exceeded the limits of the warrant
- Timing of the search exceeded the limits of the warrant
- Search was done without witnesses
- Coercion, threats or torture were used during the search
Practice Tip No. 17:
Evidence obtained through a search, with or without a warrant, is always controversial. It is important that a search falls within the limits of the warrant or investigation; otherwise innocent citizens would be subject to random searches and seizures. The law protects innocent citizens. See, CPC, Articles 149, establishing limits to an investigatory search.
Practice Tip No. 18:
The Constitution bars the use of coercion and physical abuse against its citizens. See, CPC, Article 71, "It is strictly forbidden to use all forms of harassment and coercion, torture, violation of his honor and dignity, against a citizen."
Suppression of identification
- Suggestive identification
- Improper identification
- No out-of-court identification
- No opportunity to cross-examine the witness
Practice Tip No. 19:
Witness identification of your client in the courtroom is compelling theater. To protect the truth finding process, be sure that the witness has made a reliable identification before coming to court. It is simple to pick out where the accused sits in court. It is more difficult to make an identification in a fair setting.
Suppression of client's statement
- Metal health issues of the accused
- Voluntary false confession
- Verbally coerced false confession
- Physically coerced false confession
- Confession made without witnesses
- Confession made without a legal defender present
Suppression of witness statement
- Unreliable witnesses
- Mental issues
- No first-hand observation
- Hearsay
Motion to continue trial
- Require additional time to meet with client
- Require additional time to prepare a defense
- Witness or expert unavailable
- Test results are not completed
- Client is mentally incompetent
