By: Dr. Peter A. Barone, Esq.
When there are questions regarding the admissibility
of various items of evidence into a criminal proceeding and criminal trials the
attorneys file motions before the court so they can have an Evidentiary Hearing
for the judge to make the determination as to whether or not the items being
presented for admission as evidence meet the requirements for
admissibility. This happens a great deal
when one of the parties is trying to claim a privilege.
Not everyone is aware of what an evidentiary hearing is or when it is used
or may occur. There are many law
enforcement officials who are somewhat confused as to the use of an evidentiary
hearing in a criminal case. When using the term evidentiary hearing is a term
that is used to describe a proceeding where evidence, such as witness or expert
testimony and documentation is presented to the court in order to reach a
decision on a particular matter. These hearings generally take place prior to
trial. Now during these hearings information and evidence is presented to
demonstrate if the item at issue being presented to the court for admission is
admissible under the rule of evidence.
There are certain requirements that must be met prior to the court's scheduling of an evidentiary hearing. When scheduling an evidentiary hearing the defendant the defendant is required to and must establish his or her right to actually having an evidentiary hearing. This occurs when a defendant's motion and the government’s response to such motion establish a dispute as to material facts. To accomplish this a competent criminal defense attorney will need to allege specific and detailed facts to make the court aware of disputed issues of fact that must be resolved during a evidentiary hearing. Regarding an evidentiary hearing it is popular to make general assertions of alleged constitutional violations; however, this will not compel a court to conduct an evidentiary hearing and the prosecutor will challenge motions by the defense alleging constitutional violations.
Looking at an evidentiary hearing from the standpoint of formulating defense strategy a pretrial motion and evidentiary hearings can be a valuable tool. The reason for this is that a pretrial suppression motion requiring an evidentiary hearing typically will lead to the disclosure of additional discovery earlier than usual. This discovery can be invaluable for trial preparation. It actually gives the defense an additional bite of the apple and the chance to see all of the evidence and also seeing how each witness testifies under the pressure of cross-examination. To examine this actual action it is technically an evidentiary hearing anytime a court hears and considers evidence to make a legal decision. This can actually occurs in many different contexts, including a motion for belated appeal, hearing on a motion for ineffective counsel (Klotter, 2000).
There are certain requirements that must be met prior to the court's scheduling of an evidentiary hearing. When scheduling an evidentiary hearing the defendant the defendant is required to and must establish his or her right to actually having an evidentiary hearing. This occurs when a defendant's motion and the government’s response to such motion establish a dispute as to material facts. To accomplish this a competent criminal defense attorney will need to allege specific and detailed facts to make the court aware of disputed issues of fact that must be resolved during a evidentiary hearing. Regarding an evidentiary hearing it is popular to make general assertions of alleged constitutional violations; however, this will not compel a court to conduct an evidentiary hearing and the prosecutor will challenge motions by the defense alleging constitutional violations.
Looking at an evidentiary hearing from the standpoint of formulating defense strategy a pretrial motion and evidentiary hearings can be a valuable tool. The reason for this is that a pretrial suppression motion requiring an evidentiary hearing typically will lead to the disclosure of additional discovery earlier than usual. This discovery can be invaluable for trial preparation. It actually gives the defense an additional bite of the apple and the chance to see all of the evidence and also seeing how each witness testifies under the pressure of cross-examination. To examine this actual action it is technically an evidentiary hearing anytime a court hears and considers evidence to make a legal decision. This can actually occurs in many different contexts, including a motion for belated appeal, hearing on a motion for ineffective counsel (Klotter, 2000).
An evidentiary hearing in criminal cases is most commonly referring to a
hearing that occurs as part of a violation of probation case. When
someone charged with a violation of probation and does not resolve the case
with an admission or dismissal of the violation of probation, the case will
ultimately resolves with an evidentiary hearing. An evidentiary hearing
is the equivalent of a trial for a law violation and the defendant does not
have all of the same rights that they would in a normal trial. During the
evidentiary hearing, the State Attorney’s Office will call witnesses and
present evidence attempting to prove the probationer violated their
probation. The Accused will also have the opportunity to call witnesses,
present evidence and present argument.
There are actually two (2) types of violation of probations and they are
technical violations and substantive violations. An evidentiary hearing
can occur on either a technical or substantive violation. The State is
forced to prove the violation by a preponderance of evidence which is less than
what is required in an appeal or a family law trial being clear and convincing
evidence and much less than what is required in a criminal trial which is
beyond and to the exclusion of a reasonable doubt. Generally, the majority of evidentiary hearings concern a probationer’s
ability to pay the many, many costs associated with probation (Klotter,
2000).
Reference
Klotter, J.C, (2000). Criminal Evidence 7th
Ed. Cincinnati, OH: Anderson Publishing.
