Motion to suppress statement
This may be the most important motion in the case because if the client made a statement, chances are they hung themselves in it. It is the most frustrating part of criminal defense because if the statement comes in, it will foreclose a number of defenses thus limiting the defendant’s chance at trial. There are countless articles, books and cases on Miranda motions so I am not going to attempt to recreate that here. However, I will make a few points.
First, file the motion even if the statement may be helpful to the defense. I would rather have no statement then any statement in almost every case. Second, consider having the defendant testify so as to gauge their reaction to the witness stand, cross examination, etc. This will allow the attorney to decide if the defendant should testify at trial. I have used this successfully to determine that the defendant will fold under cross examination and that there is no way they could be called at trial.
An issue not focused enough at a Miranda hearing is the demeanor of the parties. Since most statements are now videotaped in New Jersey and other jurisdictions, highlight for the court the demeanor of the parties and the psychological tactics used. This can also be brought out under cross examination. It also helps if the defendant starts crying right before the admission when there was previously a denial. I argue that this transition point is where the defendant’s will was overcome and he was broken down by the detectives. This argument has been successful in my practice. Regardless, you are painting a nice picture for appeal.
Unfortunately, child pornography defendants seem all too eager to spill the beans and thus, they may not break down. Instead, they may start confessing right away even through some tears. It may be hard to argue they they were broken down so quickly. Instead, the attorney may want to focus on any coercive statements that were made to the defendant to get him/her to testify. While there is not a lot of case law indicating that same will lead to victory, it is still an argument to be made. Furthermore, cross examination on these issue (i.e. lies) can be later used at trial. Thus, a skilled defense attorney can use any testimonial hearing as a form of deposition.