2.4 Enforcement of the Exclusionary Rule: Motion to Suppress

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

2.4 Enforcement of the Exclusionary Rule: Motion to Suppress

The exclusionary rule is usually enforced through a suppression hearing before trial.⁹⁰ The defendant generally has a right to a hearing outside the jury's presence during which the judge decides whether the challenged evidence was obtained in violation of the defendant's rights.⁹¹

In such a hearing, the government generally bears the burden of establishing admissibility of evidence by a preponderance of proof, even in due process challenges.⁹² The sole issue is whether the evidence may be admitted for consideration on the merits at trial. The defendant has a right to testify at a suppression hearing. If she does testify, this testimony may not be used against her at trial on the issue of guilt.⁹³

Caution

Whenever the defendant's testimony is needed on a motion to suppress, defense counsel should be sure to state on the record that the testimony is...