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Franks Hearing

  • Gene 

How many times have you heard the phrase “he said she said”?  This phrase originates from the idea that — in divorce hearings — sometimes all a judge has to go on are the statements of the husband and the wife, which are often in conflict with each other.

Divorce hearings are not the only time this happens, of course.  In a criminal case, it’s not unusual for the prosecutor to put witnesses on the stand that say one thing, and the defense counsel brings witnesses that say the opposite.  At a jury trial, the jury determines credibility, meaning that it’s the jury who decides which witnesses they believe and which ones they do not.

Outside of a trial, this dilemma comes up as well.  If a defendant has already been incarcerated and is fighting their case, they may offer sworn witness testimony or statements, usually in the form of affidavits, that were not brought up at trial for whatever reason.  The prosecutor may then do the same.  Because no jury had the opportunity to review those witnesses or witness statements to determine whether the statements and/or witnesses are credible, it is usually proper for a court to hold an evidentiary hearing on the statements being presented, assuming, of course, that they would make a difference to the defendant’s conviction or sentence.  This type of hearing, when the credibility of one or more witnesses must be determined before the next phase of the case can be determined, is called a “Franks Hearing” because the United States Supreme Court case instructing same is Franks v. Delaware, 438 U.S. 154 (1978).

As in the Franks case itself, sometimes these types of hearings can also be used to challenge the validity of arrest warrants or search warrants pre-trial, and the courts holding such hearings to bring the officers who applied for such warrants to court to justify their reasons for requesting the warrant in the first place.  If the officer is found to be incredible, or they submitted the application for the warrant without sufficient probable cause, sometimes the case must be dismissed completely even before going to trial.

Specifically, for a court to order a Franks hearing to evaluate an officer who requested the warrant, the petitioner requesting the hearing must show two things: (1) that the affiant, in support of a warrant, includes “a false statement knowingly and intentionally, or with reckless disregard for the truth” and (2) the allegedly false statement is necessary to the finding of probable cause.” Franks, at 155-56.  When these two can be demonstrated, a defendant’s Fourth Amendment right to be free from unreasonable searches and seizures is violated, and the case may be dismissed by the reviewing court.

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