Evidentiary Hearings 

By: Dr. Peter A. Barone, Esq.

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 3.850 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 (Klotter, 2000).

                                                          Reference

Klotter, J.C. (2000). Criminal Evidence 7^th ed. Cincinnati, Ohio: Anderson Publishing Company.