8.14 - 1. Burden Of Proof And Conduct Of The Hearing

• Jurisdiction: New York

1. Burden of Proof and Conduct of the Hearing

The prosecutor has the burden of proving the voluntariness of the defendant’s statement beyond a reasonable doubt.¹⁵⁴⁷ Although the issue to be decided is whether the statement was voluntarily made, the actual content of the statement (i.e., the questions asked and the answers given) is competent and material evidence at the hearing.¹⁵⁴⁸ The prosecutor must call to the stand an individual who was present during the defendant’s statement. Generally, this will be the police officer who conducted the questioning. To establish the voluntariness of the statement and to show that the defendant’s constitutional rights were not violated, the prosecutor will ask a series of predicate questions covering, at a minimum, the noncoercive circumstances of the questioning and the scene where it took place; advice of Miranda warnings (if given)¹⁵⁴⁹ and the defendant’s responses thereto;¹⁵⁵⁰ the defendant’s physical and mental condition (e.g., no indication that the defendant was confused or under the influence of drugs or alcohol at the time the questioning took place); and what promises or threats, if any, were made before or during the questioning.

Defense counsel is entitled to a copy of the defendant’s written or recorded statement.¹⁵⁵¹ Counsel is also entitled to all prehearing statements of prosecution witnesses for use in conducting cross-examination at the hearing.¹⁵⁵² Cross-examination by defense counsel should cover all potential areas mandating suppression suggested by the facts. These might include inadequate Miranda warnings or failure to give them at all, the defendant’s lack of capacity to understand the warnings...