Different Record Same Evidence: When Pretrial Motion Records Can Be Incorporated

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

State v. Bruno Gibson, decided September 16, 2014 by the Supreme Court of New Jersey lays out the difference between evidence presented at a motion to suppress hearing and evidence at trial as well as when to acquit a defendant versus when to remand them for a new trial.

The case arose out of the defendant being pulled over for alleged drunk driving. The officer smelled alcohol on his breath and the defendant proceeded to fail both alcohol tests being admitted. The municipal court heard a pre-trial hearing to suppress evidence and at this hearing the officer testified. The officer did not testify a second time at trial but his testimony from the motion to suppress hearing was used. The defendant did not object to this and in fact based their argument off of the same evidence. The Law Division found beyond a reasonable doubt the state established the defendant drove while intoxicated in a trial de novo. The defendant appealed and the Appellate Division directed the law division to enter a judgment of acquittal.

Requirements for Motion to Suppress

The reason for the judgment of acquittal was error. The error was incorporating the record of the motion to suppress into the trial record. The N.J. Supreme Court adopted a rule that separates evidence for a motion to suppress from evidence used at an actual trial. This is because there are different burdens of proof and rules of evidence for both proceedings. The record from the motion to suppress can only be incorporated into the trial if:

  1. Both counsel are notified in advance
  2. Defense counsel is able to conduct broad-ranging cross-examination of the State’s witnesses
  3. Both counsel consent on the record

In the case of the motion to suppress in this case the evidence was only meant to address whether probable cause for an arrest existed. However the evidence was sufficient to find the defendant guilty beyond a reasonable doubt and as previously mentioned the defendant based his argument on this same evidence. If the evidence had been insufficient to find guilt beyond a reasonable doubt then the defendant’s double jeopardy protection (protection from being tried twice) may have been activated but this is not the case here. So an acquittal is not the proper remedy but a remand to the municipal court for a retrial would be. The error in this case is not the sort of reversible error that should grant the defendant immunity from punishment.

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