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Does a criminal defense attorney "normally" move to suppress any questionable evidence obtained by the prosecution?

Kingwood, TX |

I'm making an assumption that in an "average" criminal case, a defense attorney wouldn't only scour the prosecution's case, but might also request material or information in the possession of the assistant district attorney but not used/presented to obtain the indictment. Is this "discovery", and is it important?

Further, is it basically common defense practice to motion to suppress weak or tainted evidence from being admitted, OR is a motion to suppress by the defense frowned upon by a defense attorney's broader workplace network of judges, ADA's, police, and fellow defense attorneys?

Don't take this last question in a derogatory way: Excluding capital crimes, crimes against children, 1st degree felonies, etc, does a significant percentage of defenders and prosecutors simply "go along to get along?"

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Attorney answers 6


There is no average criminal case nor any normal procedure that fits all cases. Depending on the facts and circumstances of your case an attorney may file a motion to suppress. Note that such motions to suppress are not filed because the evidence is weak but because it was obtained illegally. As for your last questions I am sure some attorneys are more cozy with the prosecution than others but in my experience most of my colleagues do not have such an attitude and none of us really take into account whether a judge is going to like a particular tactic or not..


A motion to suppress should be filed whenever there is any reason to believe that there may be a reasonable chance that it should be granted; a motion to suppress is to suppress evidence obtained illegally: insufficient basis for a search warrant; lack of probable cause; lack of articulable suspicion; defective consent; unreasonable stop, search and siezure, ect.. Many criminal defense lawyers file boiler-plate motions to suppress in every criminal case (often, to justify the large fees they collect and they know that they are never going to actually try a case). I have also filed motions to suppress evidence in cases where I believe that one or more law enforcement officers will lie on the witness stand and I can discover officers that are unwilling to lie; creating a conflict in the testimony. Otherwise, I trust the prosecutor to not pick up the file until the day before, or even the day of trial. In other words, I don't force the prosecutor to bone-up on the case.


John is correct. The only thing "normally" done is entering a plea of "not guilty." And even then, exceptions abound. Remember, you are paying for judgment and strategy. No war is won with the "normal" strategy. Good Luck!


I ditto the response from counsel. A motion to suppress evidence is filed when something was done illegally. The alleged illegal acts that the moving party is seeking to suppress will happen before the prosecutor has received the report filed by the police, sheriff, or any other agency which enforces crimes. Discovery is essential in any criminal case. Weak or tainted evidence provided by the prosecution actually can work in favor of a client and not against the client. One can challenge the admissibility of the evidence but to file a motion to suppress as stated by counsel in their response, it has to be the product of something that violated your rights.


You are correct in believing that a defense attorney may seek all evidence and information in the prosecutor's file. Generally, a prosecutor is required to provide the defense with all relevant information, except for his/her ""'work product,"" that is, documents and notes evidencing his/her mental impressions and opinions. This is especially true with regard to exculpatory evidence (evidence showing defendant's innocence).

A motion to suppress evidence should be filed whenever the conduct of the police/prosecutor violates one's constitutional rights. The most common example for a motion of suppression would be when the police conduct a warrantless search of the defendant's person or area where he enjoys a right of privacy.

Sometimes a motion to suppress is not warranted and it might be viewed with disfavor by the judge. In minor offenses, it probably makes sense to pursue a less adversary approach than by filing for a motion to suppress. When in doubt, especially for serious offenses, an attorney should probably file it.


Any reasonable defense attorney will file a motion to suppress any illegal or even questionable evidence obtained by the state. He should interview witnesses, request all favorable evidence and hire his own investigator to track down favorable evidence and witnesses. He should not be concerned with what the state or the judge thinks. His only priority is his client and how best to serve that client's interests.