Monday, March 11, 2013
I write today to clear up some remaining uncertainty regarding the timing for a motion for immunity and the immunity hearing.
The motion for immunity is similar to a motion to suppress evidence because, if the motion is granted, the case is over.
Hearings on potentially outcome-determinative motions, such as a motion to suppress evidence, are always held before trial because, if the moving party wins (i.e., the defendant), the case is dismissed and there is no trial. If the defendant loses, the case proceeds to trial, unless he pleads guilty.
For example, let us suppose that a police officer arrested a defendant without probable cause and discovered a rock of crack cocaine in a pocket in the defendant’s jacket during the search incident to the arrest. The defendant is charged with possession of cocaine and pleads not guilty at the arraignment.
The defendant moves to suppress the rock before trial on the ground that the arrest and subsequent search were unlawful because the officer arrested him without probable cause. But for the unlawful arrest, the rock would not have been discovered. Thus, the rock is a “fruit of the poisonous tree” and must be suppressed pursuant to the exclusionary rule. That is, evidence seized unlawfully from a defendant by police cannot be used against the defendant at trial.
Without the cocaine, the prosecution would be unable to prove that the defendant possessed cocaine. Therefore, it would have to dismiss the case and the court would have to grant the motion.
An immunity hearing is similar. If the defendant prevails, the court must grant immunity from criminal prosecution and civil suit. Therefore, the outcome is similar to the motion to suppress. The prosecution cannot proceed and the court must dismiss the case.
While it is theoretically possible to merge a hearing on a motion to suppress evidence into a trial, there is little sense to do so because the issues and attorney strategies are different.
For example, the direct and cross examination of the arresting officer for purposes of the suppression motion will be focused on whether the officer had probable cause to arrest, whereas, the legality of the arrest and subsequent search is not an issue for purposes of the trial. It’s just something that happened and no longer relevant to the ultimate issue the jury must decide. That is, whether the defendant is guilty or not guilty.
I have provided the simplest example of a motion to suppress evidence. They can be far more complicated and last more than one day, such as might be the case when multiple locations are searched, some with search warrants and some without. It makes no sense to waste the juror’s time and risk confusing them with irrelevant evidence and issues.
In the federal and state courts in which I practiced, the courts set deadlines within which to file motions to suppress. Failure to comply with a deadline typically meant the motion was waived, unless you had a good reason for not filing the motion, such as newly discovered evidence that you did not know prior to the deadline.
Federal and state judges hate to summon people for jury duty for cases that can be potentially resolved by outcome-determinative motions prior to trial. They hate even more having to waste jury time with evidence that is irrelevant to the issues the jury must decide.
Although constitutional rights are at stake during hearings on motions to suppress evidence, the courts can and do hold that those rights are waived by failing to assert them in timely fashion.
Just as notice and an opportunity to be heard are important to due process of law, so too is finality. Legal issues that can be decided should be decided. I cannot think of a good reason not to decide the issue of immunity before trial and to deem it waived, if it is not.
I have already written about the potential for constitutional error requiring reversal of a conviction and remand for a new trial here and here, if an immunity hearing is merged into a trial and will not revisit that issue today.
However, I will comment regarding the idea that an immunity hearing could be conducted after trial.
If a jury returns a guilty verdict, the case is over. Since the defendant’s guilt has been proven beyond a reasonable doubt, the jury necessarily must have decided that the prosecution proved absence of self-defense beyond a reasonable doubt. The verdict precludes a finding that the defendant proved self-defense by a preponderance of the evidence. Therefore, the immunity motion must be denied.
If the jury acquits the defendant, however, either judge or jury could theoretically decide that the defendant had met his burden of proving by a preponderance of the evidence that he acted in self-defense.
The problem in this situation, however, is that the jury may have acquitted a defendant who did not testify or offer any evidence, which a defendant has a right to do.
Should he now be permitted to put on a case to prove that he acted in self-defense?
Does he have a right to have the jury decide that issue or must the judge decide the issue.
What happens if the defendant testifies and the judge or jury decides they do not believe the defendant and now want to find him guilty?
I do not see any easy answers to these questions.
There is no doubt that the legislature intended that the issue of immunity should be raised and decided before trial and I can think of no good reason to do otherwise.
If I were the judge, I would hold a hearing as soon as possible to consider whether the immunity hearing can be merged with the trial or considered after trial, and if after trial, whether the judge or the jury should decide whether to grant immunity.
These are extremely important issues that should be considered and resolved before trial to avoid a lot of grief later.
If no action is taken, we can only sit back and watch a slow-motion train wreck.
Finally, I want everyone to know that I firmly believe that the defense does not want to have an immunity hearing because they have no defense and the defendant would be crucified on cross examination exposing him to be the liar that he is. They obviously do not want to admit this, so they allowed the court to strike the hearing without formally and publicly waiving it. I doubt that we will hear more from the defense about this issue, since they want it to disappear.
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