Clueless About the Mock Trial Pretrial Argument? Start Here!

Stressing about your team’s pretrial argument? If you are, you’re not alone! I get lots of questions and requests for help with pretrial arguments. After all, they can be difficult to tackle for anyone who hasn’t gone to law school. 

It’s probably for this reason that most mock trial programs DON’T include a pretrial argument. But if you are working with a program that includes a pretrial component, I’ve got you covered! I’ll answer the questions I get most often and hopefully, make the process seem just a little less daunting. 

Although this is written with California’s mock trial program in mind, it should be a helpful guide for anyone navigating a mock trial pretrial argument. 

What the heck is the Pretrial Motion?

The pretrial motion is almost always a motion that the defense makes to exclude a piece of evidence from the trial. The defense asks the judge to keep the prosecution from using certain evidence. This evidence might be some testimony a witness is expected to give, or it can be physical evidence, like a weapon or something found on the scene of the crime.

The prosecution opposes the motion, and they argue that they should be allowed to use the evidence at issue. 

What do students need to know to prepare for the pretrial motion? 

A pretrial lawyer’s job is to convince the judge. They’ll support their arguments using the law, which is all included in the case packet. What do I mean by “the law”? I mean parts of the US Constitution, your state’s constitution, statutes, and case law. These things tell us what the law is, and of course, your judge has to follow the law in ruling on your pretrial motion. 

Let’s talk about each of them. 


U.S. Constitution

“Supreme law of the land.” No other law can violate the Constitution, and the government can’t do anything that violates the Constitution. Your case packet will likely contain a Constitutional Amendment (or two) that is part of the Bill of Rights.  The Amendment I’ve seen most often is the Fourth Amendment, but you may also deal with other rights like First Amendment (free speech) rights. Your case packet will likely also contain the Fourteenth Amendment, which says that the state (for example, the police officers in your case) can’t violate the constitutional right at issue.

State Constitution

Your case packet might also contain some provisions from your state’s constitution. Typically, these provisions echo or reinforce the US Constitution provisions that are provided.


These are laws enacted by the federal or your state’s Legislature. For example, your case packet might include the provision of your state’s Penal Code that the defendant is accused of violating. 

Case Law 

These are prior cases decided by different courts, usually the US Supreme Court. The judges in these prior cases interpret and apply the Constitution or statutes that you’re dealing with. 

Judges follow precedent by ruling the same way that previous judges did in similar cases. Your job is to find cases that you want your judge to follow, and then argue that your case is like those prior cases – so that your judge then has to follow those prior cases.

Judges applying the same constitution or statute may reach different conclusions depending on the facts of the specific case they are considering. Your team’s job is to draw analogies between your case and prior cases with decisions that support your argument. This is done by arguing that because the facts are the same, your judge should reach the same conclusion as the judge(s) that previously considered the issues. 

What about the prior cases with decisions that don’t support your argument? Your team’s job is to distinguish those cases by explaining that they are different from your case. Your team will argue that because the cases are different, your judge shouldn’t follow the previous ruling.

Most of the case law you’ll get will be binding authority, meaning that it was decided by the US Supreme Court or another court that your judge is required to follow. But you might also get cases that are persuasive authority, meaning that they were decided by another court, usually a Court of Appeal in another part of the country. Your judge doesn’t need to follow persuasive authority. 

How is the pretrial motion argued? 

A pretrial lawyer prepares their argument by understanding, interpreting, and applying the law. They’ll give their argument in court, and this looks a bit like a speech being delivered.

Buuuut… it’s not as easy as a speech. In pretrial argument, the judge can interrupt the “speech” at any time. The judge does this to ask questions they might have about your case or about the law that’s being applied.

That means a pretrial attorney needs to be ready to think on their feet and answer questions, even questions that sometimes feel like they came from nowhere. 

This may sound daunting, and honestly, it is pretty a pretty challenging task for a high school student. But it’s nothing you and your team can’t handle with some preparation. As always, I’ve got a step-by-step guide to help walk you through this. It’ll be released soon, so if you haven’t already, sign up below to “Stay in the Know.” This will get you added to our email list to get notified when we come out with new guides and tips.