The Significance of Suppression: Don’t Just Go Through the Motions

Rick McKelvey is an assistant prosecutor in Atlantic County, New Jersey, and an adjunct professor of criminal justice at Richard Stockton College of New Jersey.

Your case will not go to trial. You will not stand in front of the jury in your best suit and give a reasoned opening statement. You will not execute poignant direct and cross-examinations of witnesses, you will not score points against your adversary with vigorous, well-timed objections, and you will not make an impassioned closing argument that leaves not a dry eye in the house. There will be no dramatic moment where the jury pronounces the defendant’s fate, because he will admit that he is guilty.

But don’t feel bad, because you are certainly not alone. In fact, as many as 97 percent of criminal cases resolve by way of a guilty plea. Gary Fields & John R. Emshwiller, Federal Guilty Pleas Soar as Bargains Trump Trials, Wash. Post, Sept. 23, 2012; State Court Sentencing of Convicted Felons, Washington, DC: U.S. Department of Justice Bureau of Justice Statistics (2005). As such, a dispositive evidentiary motion often becomes the most important event in a case. In particular, a motion to suppress becomes the key moment at which a defendant tries to have the law do what the facts cannot: exonerate him from guilt. Under the exclusionary rule, defendants will seek to suppress physical evidence discovered in violation of the Fourth Amendment, or incriminating statements or out-of-court identifications made in violation of the Fifth or Sixth Amendments.

Therefore, prosecutors and defense counsel alike must treat suppression motions with the seriousness they deserve. It’s a three-step process: writing, preparation, and execution. By giving each step the necessary attention and focus, an attorney can obtain a strong, and sometimes final, advantage in the case.

First, writing and research are already sorely overlooked aspects of criminal litigation. If you have practiced in criminal trial work for long, chances are you have done much more copying and pasting than shepardizing. Well, it’s time to get back to it and make your first-year legal writing professor proud. Go beyond the black-letter law and find that decision that is so analogous factually that the judge has to see your point. Then, take the time to create an organized, well-reasoned brief. Apply the facts of your case to the case law. Cite to the record. Quote witnesses and case law alike, especially when their similarity or disparity is important to highlight. Your brief should set the framework for the rest of the motion.

Next, preparing a suppression motion entails different approaches for prosecutors versus defense counsel. In most suppression hearings, the state’s witness will be a law enforcement officer who has not thought about the case since writing a police report months earlier. He or she also is not intimately familiar with the relevant legal factors considered in your jurisdiction, and did not necessarily include all of the relevant facts in the report. As such, advance preparation with your witness is required. Witness responses in preparation may lead to new information coming to light that must be investigated further, discovered to your adversary, or that significantly affects your proofs. It is imperative that this information comes to your attention well in advance of your adversary’s cross-examination. Often, the defense will not call witnesses, which means counsel’s attention to detail is crucial for an effective cross-examination. By knowing the officer’s report better than he or she does—times, dates, and seemingly minor details—and using, if helpful, the client’s insight, a defense attorney can prepare an impactful cross-examination.

Finally, each side should treat the hearing itself with no less enthusiasm and focus than if it were a jury trial. Why? Beyond being professionally appropriate, it is important to your clients and witnesses that you lead by example. A prosecutor who tells the police witness that the facts are in their favor, and the hearing is just a formality, should not expect much effort from that witness on game day, which can lead to errors, surprises, or even worse on cross-examination. A defense attorney who doesn’t believe in the motion and makes no effort in executing will have a hard time regaining the client’s trust or confidence at trial or in plea negotiations. Instead, each party must perform based on the framework created through advance writing and preparation.

As much as you may like to, you cannot change the facts or the law. So you might as well take a comprehensive approach to the motion and give yourself the best chance at success. If you build a firm foundation through research, writing, and witness preparation, then execute with focus and enthusiasm, it’ll be bad news for the other guys.


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