How to Win the Trial After the Judge Fails to Suppress Unreliable Evidence

By Patrick T. Barone, Esq., author of Defending Drinking Drivers

We are always looking for ways to obtain results for our clients. Naturally, our first line of attack will be motion practice, and this usually means looking for ways to have evidence suppressed. The problem of course is that when it comes to the law, judges often see things differently than we do. And the result is that evidence is rarely suppressed. This does not mean that you should give up filing motions, and it certainly does not mean you give up trying to win.

I discuss ways to respond after losing a motion to suppress in a newly added section in my book Defending Drinking Drivers, which has been reproduced below. This section specifically addresses those instances when the judge rules that your argument goes to weight rather than admissibility and I am always looking for ways to turn a pretrial loss to my advantage at trial.

In a recent drunk driving case the judge ruled that I was not entitled to certain discovery. My response, based primarily on the arguments set forth in this new section, was to prepare a special jury instruction. I wanted the jury to know the prosecutor was essentially withholding evidence, and I wanted the judge to tell them about it. In the end we settled the case, but I’m looking forward to making these arguments in a future trial.

§608 Empowering the Jury to Provide Justice

As a lawyer you don’t get to choose the facts of your case. Your client does that for you; and while you can’t change the facts of your case, you might be able to exert some influence over whether or not all of the case facts are presented to the jury. In the preceding chapters, many different issues and arguments are discussed relative to the task of keeping unfavorable evidence from being presented to the jury.

Usually this effort to “change the facts” takes the form of pretrial suppression motions, and there is no doubt that wining such motions is becoming increasingly difficult. Across the nation when looked at collectively, it may be said that the most common response to a defense motion to suppress is that your argument “goes to weight rather than admissibility.” At the appellate level, the result of these collective opinions is that the gate-keeping function of trial court judges relative to intoxication evidence is being largely eviscerated. A secondary result of this trend is that the role if not the power of the jury is increasing. An excellent example of this is set forth in the case of People v. Anstey, 719 N.W.2d 579, (Mich. 2006). In this case, the defendant’s right to an independent test was effectively denied by the police officer but the statute governing this right did not propose a remedy for violation. The court was unwilling to impose one, and instead concluded that the defense could request an evidentiary hearing on the issue, and if it was proved at the hearing that the motorist’s right to collect an independent test was violated, then the jury, not the court, could make the appropriate determination. It was thus the role of the trial judge to instruct the jury that the defendant’s implied consent rights were violated, and it would then be up to the jury to determine what significance, if any, to attach to this fact in deciding the case. For a more detailed description of this case see infra §534.9.

The Ansty opinion, and others like it, have effectively expanded the role of the jury and for this reason ought to be viewed with some optimism as this expansion is perhaps an unintended result of this “anti-gate keeping” trend. While it may appear that this potential is not fully realized because these opinions do not explicitly allow the jury to impose an actual remedy such as suppression and/or dismissal, one may argue that such increased jury power simply must be read as implicit in the various opinions that deprive the trial judge of this discretion. After all, it would seem that if the appeals court is going to ostensibly pass the gate-keeping power, discretion and responsibility on to the jury, then this ought at least to be done in a way that empowers the jury to exercise authority previously reserved for the trial court judge, that is, the power to actually impose a remedy. In other words, and in following the reasoning of “weight vs. admissibility”, if the trial judge is not allowed to provide for a remedy then what’s to stop the jury from fashioning one?

To accomplish this education of the jury, defense counsel has several options. These options begin of course with pretrial preparation, and so, in preparing the trial strategy, counsel might first consider filing pretrial motions requesting as appropriate either suppression or dismissal. If the trial judge denies the motion answering with the “weight not admissibility” retort, then counsel might follow through by asking for an appropriate jury instructions, i.e., one that specifically empowers the jury to fashion an appropriate remedy, including either dismissal or suppression. These special jury instructions might be appropriate in circumstances involving improperly issued warrants, improperly administered chemical tests, administrative rights violations and even where there has been a failure to properly administer one or more of the standardized field sobriety tests. This power of the jury to fill in for the trial judge is meaningless unless it is pursued by counsel, but with the proper instruction, and the proper argument, this power can be capitalized upon. Counsel should be careful therefore to draft instructions that empower juries by advising them of their “right” to impose the appropriate remedy. Also, for a discussion of how to incorporate these concepts into voir dire, see supra, §610.5
Patrick Barone, author of Defending Drinking Drivers is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.


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