Motions Hearings; Motions Arguments

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 361-367

361

CHAPTER 16

MOTIONS HEARINGS;

MOTIONS ARGUMENTS

PART A. MOTIONS HEARINGS GENERALLY

§ 16.01 Evidentiary and Non-Evidentiary

Motions Hearings

Depending upon the t ype of motion involved and the specific fact s at issue on the motion,

a motions hearing can be either a non-evidentiary legal argument by the attorneys or a

trial-like evidentiary hearing.

Motions that raise purely legal issues, such as motions challenging the sufficiency

of the Petition or the jurisdiction of the court (see Chapter 17) are presented at non-

evidentiary hearings, since they involve no factual disputes that need to be resolved

through the presentation of testimony. The same is true of motions that turn upon facts

already known to the court, such as most motions for recusal of the judge (§§ 20.04–

20.07 infra), or facts verif iable through a review of court records, such as motions to dis-

miss the petition on double jeopardy grounds (§ 17.08infra)or for a violation of speedy

trial guarantees (§ 15.04supra).

The quintessential type of motion that turns upon factual issues and therefore

requires an evidentiary hearing is a motion to suppress evidence. Motions to suppress

tangible evidence (Chapter 23), confessions (Chapter 24), and identification testimony

(Chapter 25) all typically re sult in an evidentiary heari ng followed by legal arguments on

the law and facts. In some jurisdictions the defense must win the right to an evidentiar y

hearing by arguing, in a non-evidentiary legal argument, the sufficiency of the facts

alleged in the suppression motion to state a claim under the applicable law. See §§ 7. 06 –

7.0 8 supra. The prosecutor can, of course, obviate the need for an ev identiar y hearing on

a motion to suppress by stipulating to t he facts alleged by the defense, thereby reducing

the hearing to a legal argument on whether the stipulated facts satisfy the legal rules

governing suppression.

Motions to dismiss for social reasons (Chapter 19) are treated very differently

among jurisdictions. Some jurisdictions routi nely convene evidentiary hear ings on such

motions; others resolve the motions on the basis of t he pleadings and af fidavits; still oth-

ers give the defense the option of proceeding by either affidavit or evidentiary hearing.