THE NATIONAL CENTER FOR JUSTICE AND

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2 THE NATIONAL CENTER FOR JUSTICE AND THE RULE OF LAW AND THE NATIONAL JUDICIAL COLLEE MOTION HEARINS PRACTICE DIVIDER 12 Honorable Ilona M. Holmes Honorable Mark J. Mcinnis OBJECTIVES: After this session, you will be able to: 1. Define when to hold motion hearings; 2. Rule on standing issues with greater accuracy; 3. Recite who has the burden of proof; 4. Respond appropriately to failures of counsel and manage witnesses; and 5. Manage motion hearings with greater confidence and ability. REQUIRED READIN: PAE 1. Ilona M. Holmes & Mark J. Mcinnis, Mechanics of Motions Hearings (May 2012) [NCJRL PowerPoint] Ilona M. Holmes, Ilona s Sample Motion to Suppress Checklist (Nov. 2008) [NJC Document]...5 SI: THE FOURTH AMENDMENT: COMPREHENSIVE SEARCH & SEIZURE TRAININ FOR TRIAL JUDES MAY RENO, NV WB/KZ

3 Mechanics of Motions Hearings Honorable Mark J. Mcinnis Honorable Ilona M. Holmes National Center for Justice and the Rule of Law The University of Mississippi School of Law Statutory Concerns and Constitutional Concerns A. Waiver: failing to file timely motion Fed. Rule of Crim. Pro. 12(f): Failure to raise motion to suppress prior to trial shall constitute waiver thereof, but the court for good cause shown may grant relief from the waiver. State practice varies: you must know applicable rules. B. Specificity: detail of fact or law required Varies with jurisdiction Statutory Concerns and Constitutional Concerns C. Hearings: the right to be heard. Must there be a hearing? Is it better to hold hearing -- * well in advance of trial * just before trial??? 1

4 "Standing": Who Should Raise It? Fourth Amendment issue: Proponent of motion to suppress must establish standing. Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978) Waiver (state law issue): ov t may waive issue by failing to challenge standing Thompson v. State, 488 A.2d 995 (Md. App. 1985) Procedure at Motion Hearings 1. Standing: defendant must establish that their rights were violated. 2. If police had warrant and the defendant challenges warrant: Then the defendant must show that an exception to ood Faith applies. There are four potential exceptions: a. No probable cause; b. Magistrate abandoned judicial role; c. Particularity deficiencies; d. Misrepresentations in application process. Procedure at Motion Hearings 3. If no warrant or attacking warrant execution: government must establish reasonableness 2

5 The Judge s Role: do you Ask questions of witnesses? Decide on legal grounds overlooked by counsel? Reach all legal issues or just determinative ones? Cite controlling case(s) or just controlling principle? Rule from the bench? Coping With Less Than Perfect Lawyers Failures to: * Cite dispositive caselaw * Spot issues * Ask the right questions * ETC.... Motion hearing as * discovery tool * impeachment tool Coping With Witnesses 1. Truthfully challenged witnesses --- Including police officers 2. Defendant as witness Testimony cannot be used in gov't's case-inchief at trial Simmons v. US, 390 US 377 (1968) 3

6 Motion Court s Role: Judge of Law and of Facts Law: usually reviewed de novo Facts: treated w/ great deference (ex) credits police vs. defendant fact findings often dispositive (ex) consent? Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. THANK YOU 4

7 Ilona s Sample Motion to Suppress Checklist 1. Did the motion specify the ground(s) for suppression per Fla. R. Crim. P (A) property was seized without a warrant (B) warrant was insufficient on its face (C) property seized was not described in warrant (D) probable cause for warrant was absent (E) warrant was illegally executed 2. Does the Motion contain all the necessary elements: The particular evidence to be suppressed must be identified The reasons for suppression A general statement of facts upon which the motion is based 3. Is the motion legally sufficient on its face? 4. Was the motion filed timely? Is there an existing pretrial order specifying time for filing? Is there a valid reason why the motion wasn't timely filed? 5. At the hearing, determine if Defendant has shown: A search and/or seizure overnment involvement Standing 5