Suppression Hearings

• 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: 425-451

425

CHAPTER 22

SUPPRESSION

HEARINGS

§ 22.01 The Timing of the Suppression Hearing

As explained in Chapter 7, motions practice varies considerably among jurisdictions.

Some States require motions to suppress to be made in writing and filed by a specified

pretrial deadline; other States allow the motions to be made orally at trial.

In jurisdictions that require written motions, the hearing on the motion may,

depending upon the jurisd iction, be conducted in advance of trial or in the m idst of trial.

In some jurisdictions, evidentiary hearings on motions to suppress are commonly held

days or even weeks before the trial. (Such an early scheduling of suppression hearings is

particula rly advantageous to the defense, since it enhances the usefu lness of the hearings

for discovery. See §§ 22.02, 22.0 4 infra.)In other jurisdictions the suppression hearing

is commonly held right before trial and, depending upon local practice, defense counsel

may or may not find it easy to obtain a continuance of the trial for the purpose of get-

ting a transcript of the suppression hearing. In still other jurisdictions the suppression

hearing (frequently called a voir dire)takes place in the course of trial, at the time when

the first witness is asked about the challenged evidence.

The trial-object ion procedure, which has fal len into disfavor in most jurisd ictions as

pretrial motions prac tice has developed, permits the respondent to object to suppressible

evidence for the first time at trial. A voir dire is then held on the objection. To be sure,

even in jurisdictions that require pretrial motions, the defense can request the suppres-

sion of evidence for the first time at trial in exceptional circumstances, for example,

when defense counsel could not reasonably have known of the challenged evidence or

the factual or legal grounds for challenging it prior to trial. See § 22.07 infra. Similarly,

in pretrial-motion jurisdictions the defense can renew a previously denied suppression

motion at trial on the basis of newly discovered evidence. See § 22.07 infra. What dis-

tinguishes the trial-objection jurisdictions is that objections to suppressible evidence are

routinely entertained, with no need to show special circumstances, at the time when the

evidence is presented by the prosecution at trial. But the objection must be made when

the first prosecution witness begins to testify about the suppressible evidence; an objec-

tion made later in the trial is usually held untimely under local rules.

426 | Trial M anual for Defense Attorney s in Juvenile Delinquency Ca ses

§ 22.02 Defense Goals and Strategies

at a Suppression Hearing

Suppression hearings may be used by the defense for several different purposes. To use

a suppression hearing effect ively, defense counsel will need to make a preli minary deter-

mination of which purposes s/he should be pursuing in the particular case. Often, a

clear-cut choice between one purpose and another will be necessary, because the pur-

poses or important means for achieving them are inconsistent. This is ordinarily not a

choice that can be put off until the time of the evidentiary hearing: Both the content

of the suppression motion and the nature of counsel’s pre-hearing preparation will vary

considerably depending upon counsel’s choice of goals and consequent strategies for the

hearing.

The first and most obvious potential goal is to win the hearing and secure sup-

pression of the evidence. Victory in a suppression hearing will frequently result in the

prosecutor’s dismissing the enti re case against the respondent. For example, suppression

of the drugs and all police testimony relating to their seizure in a drug possession case

usually leaves the prosec utor without any evidence of the respondent’s alleged wrongdo-

ing. In many cases suppression of eyewitness identification testimony or of a confession

deprives the prosecution of the on ly available evidence of the respondent’s identity as the

perpetrator of the offense. Even when a defense victory at the suppression hearing does

not wholly prevent the prosecutor from going forward to trial, the suppression ruling

may create major gaps in the prosecutor’s proof and thereby substantially improve the

chances for an acquittal at trial.

An alternative defense goal at the suppression hearing is to obtain discovery of the

prosecution’s case on the issue of guilt. Depending upon which claims are litigated and

the way in which defense counsel shapes the hearing, the prosecutor’s evidence at the

suppression hearing may provide a f ull preview of the prosecution’s case-in-chief at trial.

For example, if the suppression motion challenges the legality of the respondent’s arrest

on the ground that the arresting officers lacked probable cause, the prosecutor may be

obliged to present extensive testimony regarding the facts of the crime known to the

police and the facts that led the police to believe that the respondent was the perpetra-

tor. In addition to obtaining this disclosure of the prosecution’s evidence, counsel may

also be able to obtain discovery of docu ments that would not otherwise be avai lable until

mid-trial: In many jurisdict ions the prosecution’s presentation of a witness in a suppres-

sion hearing activates a prosecutorial duty to turn over to the defense any prior written

sta temen ts of t hat w itne ss or docu ments prepa red b y tha t wit ness . See, e.g., N.Y. Fa. C.

A § 331.4(3)(a) (2012). Beyond this discovery of the content of the prosecution’s case,

defense counsel also gains a va luable opportunity to watch prosec ution witnesses on the

stand and acquire insights into their vulnerability to particular approaches on cross-

examination. Indeed, it is often possible to use a suppression hearing to test risky lines

of cross-exami nation in order to determine what questions can be safely used at trial. In

jurisdictions where delinquency cases are tried to a jury or where liberal recusal rules

permit the defense to obtain a d ifferent judge for the trial (see § 22.07 infra),the ultimate