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Pretrial Evidentiary Hearings in Federal Criminal Cases: A Few Observations

Kish Law LLC

Hello Sports Fans, Paul Kish here, just returned from U.S. District Court here in rainy Atlanta, Georgia where we had a pretrial evidentiary hearing in yet another federal criminal case.  I’ve done many hundreds, if not thousands, of these in my career, and I’d like to provide a few observations about these hearings that happen in some federal criminal cases.

First, we do not have these hearings in every case.  Instead, Judges will convene one of these hearings only when the Court needs some evidence in order to rule on a pretrial issue brought up by one side or the other.  Most of these hearings relate to pretrial motions filed by a Defendant, such as a Motion to Suppress.  However, other cases involve pretrial pleadings by the prosecutor who requests a ruling that certain evidence should either admitted or kept out of the trial in the case.  For example, one time we had a lengthy hearing where the Government asked the Judge to prohibit our expert witness from testifying at the upcoming trial.  The trial Judge ruled for the prosecution, yet in the end we basically won when the Court of Appeals saw the issue our way and reversed all convictions because of the improper exclusion or our expert witness.

Second, there are sometimes many reasons why one side or the other wants an evidentiary hearing.  In the example above where the prosecutor asked to keep our expert witness out at the trial, I feel certain that the Government attorney also wanted the hearing in order to get a pretrial crack at questioning our witness. Defense lawyers sometimes do the same thing, they file motions in order to have the opportunity to question certain prosecution witnesses.

Third, the strategy at a pretrial hearing is often different than that which is used at trial.  Sometimes, the strategy is to “lock in” the prosecution witness to his or her version of the story, to prevent any changes later when there is a trial.  Remember, there is almost always a court reporter or recording of the testimony at a pretrial evidentiary hearing, and that transcript or recording can be a powerful tool if the witness decides to tell a different tale at the later trial. When the hearing is used for this purpose, you will sometimes see the attorney break the rule that says “never ask a question to which you do not know the answer.”  That rule is a good one for the trial itself, but at the pretrial hearing the defense lawyer sometimes wants to hear the absolute worst that the witness can say about his or her client, in order to know about and prevent (with that handy transcript or recording) the witness from telling a different version at the actual trial.

Finally, while the Federal Rules of Evidence technically do not apply at pretrial hearings, other rules can have an impact.  Technically, otherwise inadmissible evidence such as hearsay is admissible in the Judge’s discretion.  However, most Courts I have practiced in seem to prefer that both sides stay fairly close to the Rules of Evidence during pretrial evidentiary hearings.  A less-known rule that applies to pretrial hearings in federal courts is Fed.R.Crim.P. 26.2.  Yes friends, this is the extension of the Jencks Act to the pretrial hearing context, meaning that when a witness testifies, the opposing side gets all of that witness’s prior “statements.”  Many lawyers forget this, and thus also forget to ask for the prior statements.  By itself, this ability to get the witness’s previous statements well before trial can sometimes be the justification for filing certain pretrial motions.

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