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.

Two Burdens

Let’s start by clarifying what “burden” means in this context.

On a motion to suppress in superior court, the defendant bears the initial burden of production, meaning he or she must demonstrate that the motion is timely filed, supported by an affidavit, states a valid claim for relief, and meets all other preliminary requirements. See G.S. 15A-977. If not, the judge may summarily deny the motion.

Assuming the defendant’s motion is not summarily denied and the court sets it for hearing, “the burden shift[s] to the State to prove by a preponderance of the evidence that the evidence [is] admissible.” State v. Breeden, 306 N.C. 533 (1982), superseded on other grounds by statute, G.S. § 8C–1, Rule 404(b). A few cases have indicated that if officers were acting pursuant to a facially valid search warrant, then the defendant bears the burden of showing why the evidence is inadmissible, but the greater weight of authority suggests that the burden always remains on the state. E.g., State v. Gibson, 32 N.C. App. 584 (1977) (“the State still has the burden of proving that the evidence was lawfully obtained,” even under “an apparently valid warrant”).

So yes – ultimately it is “the state’s burden” at this hearing, but how does that affect who goes first in presenting evidence?

Two Rules

The Court of Appeals has explained that “since the State has the burden of proof, it should proceed with presenting evidence to the court” at a suppression hearing. State v. Williams, 225 N.C. App. 636 (2013). That seems pretty clear. The state has the burden, so the state goes first.

But the Williams court went on to find that it was not error when, after some initial confusion about which party had the burden of proof, “counsel for defendant volunteered to proceed and called the two officers involved in the arrest to testify.” Id. The court explained that “the fact that defendant presented evidence first is not determinative of which party had the burden of proof.” Id.

The North Carolina Supreme Court was even more explicit when it found no error in a case where the defendant at a suppression hearing was required to present his evidence first. State v. Temple, 302 N.C. 1 (1981). The court’s decision rested on the distinction between rules of law and rules of practice:

Although the party who has the burden of proof is generally the party who first puts on evidence, the order of presentation at trial is a rule of practice, not of law, and it may be departed from whenever the court, in its discretion, considers it necessary to promote justice. […] Since the order of proof in a criminal trial is largely within the discretion of the trial judge, inversion of the order is not grounds for reversal unless the court abuses its discretion and defendant establishes that he was prejudiced thereby. […] The order of proof has no effect on the burden of proof or the burden of going forward with the evidence, since the order of proof is merely a matter of practice without legal effect.


Two Questions

Under Temple, as long as the judge’s decision to alter the order of presentation is not (i) an abuse of discretion and (ii) prejudicial to the defense, it likely will not be deemed error on appeal.

What constitutes a prejudicial abuse of discretion in altering the order of proof? The Temple court didn’t offer any examples. If this were a trial, perhaps the defendant could argue that it would be prejudicial to order him to present evidence before the state rested its case, since that would force the defendant to make critical decisions (such as whether to testify or put on evidence of self-defense) before hearing all of the state’s evidence against him.

But at a suppression hearing, where the defendant’s own motion set up the issues to be decided, the prejudice argument seems harder to make. As long as the state’s witnesses are present in court, the defendant can simply call them to the stand and ask whatever questions he or she originally planned to ask on cross-examination – which is precisely what happened in Temple. See 302 N.C. at 5 (“defendant was given the opportunity to fully examine the witness and was not prejudiced by calling the witness as his own”). In fact, since G.S. § 8C-1, Rules 104(a) and 1101(b) make clear that the rules of evidence do not apply at suppression hearings, the defendant could even use leading questions on direct, just like a normal cross-examination.

The second question, which some readers have been wondering since the beginning of this post, is: Who cares? Doesn’t the state always end up going first anyway?

In district court, where “motions to suppress evidence should ordinarily be made during the course of the trial,” and the state’s witness is already up on the stand testifying… probably so. See G.S. 15A-973. Even in superior court, if the only issue to be decided is whether the officers had reasonable suspicion to detain the defendant, or whether the officers searched in an area that fell outside the scope of the warrant – again, it probably makes more sense to have the state go first and call its witnesses to testify about what they did and why they did it.

Consider, however, a motion to suppress under Franks v. Delaware, 438 U.S. 154 (1978), where the defense alleges that a search warrant is invalid because the affidavit supporting it contained a false statement, without which there was insufficient probable cause to issue the warrant. If the key evidence at the hearing will be testimony from a defense witness who offers a different version of facts from what’s written in the affidavit, the judge might reasonably conclude that it would be more efficient and productive to start the evidence by hearing from that witness first, so that the state’s evidence on rebuttal can be narrowly tailored to address only those matters which are in dispute. Similarly, if the key issue at a suppression hearing will be the defendant’s claim that he or she was improperly detained and did not feel free to leave, the judge might conclude that the most logical place to start with the evidence is by hearing from the defense about why he or she felt that way.

Of course, the other reason why the state may care who goes first at a suppression hearing is the perceived tactical advantage of going second in this situation, after the defense has staked out its position, allowing the state to direct its full attention and argument onto those areas where the defendant’s claims appear to be the most vulnerable. To my ear, that sounds a lot like the position which the defense usually occupies at a trial, and I imagine some defense attorneys would be understandably resistant to the idea of giving up that position at a suppression hearing. But absent an abuse of discretion plus actual prejudice, I think the cases above show that the court does have this option.

2 thoughts on “Who Goes First?”

  1. I believe that the State should go first with sworn testimony and written reports that state why they believe that the police action taken was lawful and not subject to suppression. Then the defense puts on it’s case as to why the testimony of defense witnesses and evidence they submit ,along with impeachment testimony from the States side gained by cross examination should prevail and suppression granted. If there is no way to change the testimony of the State actors by knowing the defense fine points, justice will be served. Police have a way of miraculously recalling items on their reports that conflict at trial with their previously submitted reports, and these revelations of course always lend more credence to their account. Example: The defense goes first and the defendant states that at the end of a traffic stop the officer handed over the documents but immediately began a spiel about their jobs and how they include searches for contraband and asking for consent to search. The driver was never explicitly told he was free to go and the officer assumed that by physically returning the documents that the driver would assume that the seizure had ended and that the driver was at liberty again. Now the officer can say that of COURSE he advised the driver that he was free to go and that what followed was consensual. Of course video and audio coverage would prove who is truthful but not all police use them, some turn them off, and getting them is a hassle.

    Franks hearings are far harder to deal with as intentional omissions are harder to prove. Suppression is the enemy of the State as those perhaps factually guilty get a walk due to improper procedures.


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