One of our District Court Judges is considering conducting hearings on motions to suppress by affidavit. Presently the hearings are conducted with live witnesses. Although the Judge makes the call, we have input into this process and I am wondering if there are folks who have had experience with such a procedure and if you have suggestions with respect to whether we should encourage this practice and the effective litigation of such hearings by affidavit. Feel free to e-mail me if you don't wish to post. Thank you.

Ray Bowman
Ray.Bowman@co.gregg.tx.us

We have a number of courts that conduct hearings on MTS by way of affidavit. Generally the procedure seems to work well enough. Affidavits can be a great place to start: the issues are usually narrowed from the beginning and sandbagging of the State is often eliminated (where the MTS is so general you don't know what is at issue). But even with affidavits it can be neccessary to have hearings to resolve conflicts and determine credibility. Recently, the Court of Criminal Appeals has issued opinions addressing hearings conducted by way of affidavits. Judge Cochran emphasized the need for live hearings in addition to affidavits for the reasons stated above.

I think that the affidavit method is uniquely suited to 705(b) hearings where the question is one of process. For example, whether a location can be calculated from a cell phone transmission using triangulation of cell phone towers. There may still be a need for live testimony on other issues but the hearing will be shorter.

In former Judge Ted Poe's court in Houston, he always held motions to suppress by affidavit. I liked it. Defense filed their motion and affidavit, making an accusation that was always more narrow than one raised in a live hearing. Then, the State filed a reply motion and affidavit. Judge read it and ruled.

If defense didn't like the process, they could always have their live hearing during trial. I'm surprised more judges don't do it.