D.D.C.: 6A, due process, and F.R.Crim.P. 43 don’t mandate in person 4A suppression hearings during Covid

The court prefers to hold suppression hearings in person because, in many cases, it is the most important pretrial proceeding. But, while a suppression hearing is a critical stage where the right to effective assistance of counsel has attached, the court isn’t convinced that the confrontation clause, due process, or the F.R.Crim.P. 43 require that they be in person. United States v. Lattimore, 2021 U.S. Dist. LEXIS 42409 (D.D.C. Mar. 8, 2021):

Today, a suppression hearing is undoubtably a critical part of a criminal prosecution. In many cases, a suppression hearing is the last major pre-trial proceeding, occurring long after indictment and following substantial discovery. The outcome often determines the ultimate result at trial or alternatively dictates whether a defendant accepts a plea deal. See United States v. Green, 670 F.2d 1148, 1154, 216 U.S. App. D.C. 329 (D.C. Cir. 1981) (noting that “the suppression hearing is a critical stage of the prosecution which affects substantial rights of an accused person; the outcome of the hearing-the suppression vel non of evidence-may often determine the eventual outcome of conviction or acquittal”). If the right to confrontation applies in “all criminal prosecutions,” there is certainly a rationale for applying that right to a suppression hearing, which occurs long after a modern prosecution has begun.

As a final note, it is worth considering that the Supreme Court has also never explicitly stated whether the Confrontation Clause applies at sentencings — a proceeding which today is conducted separate from trial but which at the time of the Framing did not exist because punishment was fixed by statute. See Apprendi v. New Jersey, 530 U.S. 466, 478-81, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). However, the Courts of Appeals to have considered the issue have all held that the Confrontation Clause does not apply at sentencing, thereby somewhat weakening the argument for its application to a suppression hearing. See United States v. Bras, 483 F.3d 103, 109, 376 U.S. App. D.C. 1 (D.C. Cir. 2007); United States v. Powell, 650 F.3d 388, 393 (4th Cir. 2011) (collecting cases).

Second, other enumerated Sixth Amendment rights — the rights to counsel and the right to a public trial — attach to critical pretrial stages in a criminal prosecution. The right to counsel protects the “most basic right as a criminal defendant—his right to a fair trial at which the witnesses against him might be meaningfully cross-examined.” United States v. Wade, 388 U.S. 218, 223-24, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). The right to counsel must attach prior to trial because, if it did not, it could not fulfill its “core purpose… to assure ‘Assistance’ at trial.” As explained by the Supreme Court in Wade:

[T]oday’s law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused’s fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to ‘critical’ stages of the proceedings. The guarantee reads: ‘In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.’ (Emphasis supplied.) The plain wording of this guarantee thus encompasses counsel’s assistance whenever necessary to assure a meaningful ‘defence.’

388 U.S. at 224-225.

The Sixth Amendment right to a public trial also attaches before trial — at a suppression hearing. Waller v. Georgia, 467 U.S. 39, 47, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984). The public trial right, like the right to counsel, exists to protect the defendant and ensure a fair trial. The right extends to a pretrial suppression hearing because the rights and equities protected at trial are “no less pressing in a hearing to suppress wrongfully seized evidence.” Id. at 46. This is due in part to the similarity in both form and importance between trials and suppression hearings. Id. at 46-47 (“a suppression hearing often resembles a bench trial: witnesses are sworn and testify, and of course counsel argue their positions. The outcome frequently depends on a resolution of factual matters.”)

In order to guarantee the fundamental right to a fair trial, both the right to counsel and the right to a public trial attach well before a jury is sworn. Likewise, the suppression hearing protects the right to a fair trial by ensuring that only lawfully obtained evidence can be introduced. Given the suppression hearing’s role in assuring a fair trial (and the integral role of cross-examination at that hearing) there is certainly an argument that the Confrontation Clause should be read, like the structurally identical Counsel Clause and the public trial guarantee, to apply to certain pre-trial hearings.