8.25 - III. Reopening Pretrial Hearings

• Jurisdiction: New York

III. REOPENING PRETRIAL HEARINGS

Even where a judge has denied a suppression motion after conducting a hearing, the suppression hearing may be reopened before or even during the trial if the defense can show additional facts that were not discoverable before the determination of the motion.¹⁶¹⁸ Wade,¹⁶¹⁹ Dunaway,¹⁶²⁰ Huntley¹⁶²¹ and Mapp¹⁶²² hearings have all been reopened where the defense has been able to establish pertinent new or additional facts.¹⁶²³ In this regard, “pertinence” means that the material sought to be introduced at the reopened hearing would materially affect or would have affected the earlier determination.¹⁶²⁴ However, where defense counsel anticipates that he may later ask the court to reopen a hearing, it is imperative that counsel call all known witnesses at the initial hearing. Where the defense has failed to call a witness whose existence was known at the time of the original hearing, the court is justified in not reopening the hearing for purposes of taking that witness’s testimony.¹⁶²⁵ Also, where new facts do present themselves before or during the trial, defense counsel must immediately move for a reopened hearing. Failure to do so will result in the issue not being preserved for appellate review.¹⁶²⁶

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