Who Goes First?

The defense files a motion to suppress evidence in superior court, and the judge sets the matter for a hearing. The parties and their witnesses show up, ready to give testimony and make their arguments. The judge opens court and asks a simple question: “who’s going first, the state or the defense?”

A view I’ve often heard expressed is that the state has to go first, because even though it was the defendant’s motion which prompted the hearing, “the state always has the burden” and the party with the burden goes first.

That’s generally a correct statement about the burden of proof, but the corresponding rule about order of presentation is a little more… flexible.

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