Precluding the State's Objections to a Motion

Rule 16 of the Arizona Rules of Criminal Procedure governs Pretrial Motion Practice. Rule 16.1, which is entitled “General Provisions,” includes the time periods in which motions and responses must be filed. The rule provides in relevant part that “[a]ll motions shall be made no later than 20 days prior to trial” and “[t]he opposing party shall have 10 days within which to file a response.” As a remedy for untimely filing, the rule provides that “[a]ny motion, defense, objection, or request not timely raised . . . shall be precluded, unless the basis therefor was not then known, and by the exercise of reasonable diligence could not then have been known, and the party raises it promptly upon learning of it.”

It seems clear enough. If I file a motion after the deadline, unless I didn’t previously know the basis for that motion, no matter how valid it might be, it will be precluded pretty much every time. However, prosecutors regularly do not bother responding to valid defense motions. Instead of precluding any objection by the state as not timely filed and granting the motion, trial courts almost always look into the issue on their own and deny the motion on grounds the state never argued. Often, I can’t believe how far courts have to go on their own to find reasons to deny a motion the state ignored.

I understand why a court might want to avoid throwing out a case because a prosecutor didn’t respond to a baseless motion to suppress or dismiss, but I can’t fathom why a court would go out of its way to find reasons to deny a valid motion to which the state didn’t (and maybe even couldn’t in good faith) respond. Although most of the defense attorneys with whom I’ve discussed this issue do not bother making a rule 16 preclusion argument, they have all acknowledged that the plain text of rule 16 requires preclusion. I’ve even spoken with prosecutors who track response deadlines with special care because they fear they will be precluded from objecting. While it’s nice to know that some prosecutors try to follow the rules, it doesn’t change the fact that, from what I can tell, they don’t have to. What is the point of giving the state a deadline if it isn’t going to be enforced? Sometimes, the trial court might even do their job for them.