Of all the weapons available to the defense, few are more potent than suppression of evidence.  When I do an appeal, or come into a case after pre-trial motions are completed, I am often astounded at how one of the biggest guns in the defense arsenal is neglected or wasted through the use of pro forma motions, lacking any semblance of thought or strategy.

Sure, the client is impressed that you cranked out a 20 page omnibus motion, but who do you think you’re kidding?  You didn’t even bother to change the name of the defendant all the way through when you churned out your standard motion papers.  This 5 second solution comes at an extraordinary price.  One size does not fit all.  Every defendant you represent deserves an omnibus motion thoughtfully crafted for the specific case.  No excuses.  If you can’t be bothered, go become a civil lawyer.  You’ll probably make more money anyway.

I’ve lectured at CLEs about the power of a strong, fully-conceived, thoroughly researched and clearly-written suppression motion.  I beg lawyers to do this.  Often, to no avail.  Is it too much work?  Is it beyond your ability?  Have you just become too complacent to care?  The excuses may have varied but the results did not.  Denied.

Suppression motions, and the hearings that invariably follow a good suppression motion, have been an exceptional opportunity for me.  I prevail with great frequency, and even if I can’t get every piece of evidence, every spoken word, every identification suppressed, I almost always walk away with some victory.  No, this is not luck or weak opposition.  It’s effort.  Police routinely fudge the details surrounding an arrest, or the procedures for identification, or . . . something.  It’s my responsibility to have such a thorough knowledge of the law, and command of the facts, that I can find that crack and exploit it. 

At the very least, you get a preview of the witnesses against you and can get a ton of information about the case.  I push the envelope as far as the judge will let me, going as deep into the facts as possible.  Why? Two really good reasons: First, to get the details that I will never get from discovery. Second, to nail down the witness’ testimony for use at trial, when he “improves” upon it after being told by the prosecutor what he did wrong.  How can any competent lawyer ignore this opportunity?

For those of you non-criminal lawyers who think, “Aha another lawyer trying to manipulate the truth to deny justice,” you miss the point.  In criminal law, we work with the information as viewed through the eyes of the police and prosecutors.  Sometimes we’re lied to, but almost always we’re fed a relative truth that’s been twisted to meet their desire to convict.  Rarely does anyone in criminal law possess “truth”, but merely stories from our respective points of view. 

Moreover, at least in NY, disclosure is largely non-existent.  Civil litigators have the opportunity to find out essentially everything about their adversaries position in advance. Criminal defense lawyers often go to trial blind.  Most people can’t conceive of how this could be, since civil cases involve only money, while criminal involves the lives of real people.  And yet, this is how it is, and how our Legislature intends it to be. 

So I reiterate my plea to any lawyer who happens upon this rant.  Take suppression seriously.  Think about it.  Develop a strategy, well grounded in the law and facts, and then make it happen.  Research the law. Then research it again.  Don’t just do it for your client, but do it for me.  I may be taking over the case and I don’t want to be saddled with anyone’s garbage lawyering.