Who Goes First?

The defense files a motion to suppress evidence in superior court, and the judge sets the matter for a hearing. The parties and their witnesses show up, ready to give testimony and make their arguments. The judge opens court and asks a simple question: “who’s going first, the state or the defense?” A view I’ve often heard expressed is that the state has to go first, because even though it was the defendant’s motion which prompted the hearing, “the state always has the burden” and the party with the burden goes first. That’s generally a correct statement about the burden of proof, but the corresponding rule about order of presentation is a little more... flexible. Two Burdens Let’s start by clarifying what “burden” means in this context. On a motion to suppress in superior court, the defendant bears the initial burden of production, meaning he or she must demonstrate that the motion is timely filed, supported by an affidavit, states a valid claim for relief, and meets all other preliminary requirements. See G.S. 15A-977. If not, the judge may summarily deny the motion. Assuming the defendant’s motion is not summarily denied and the court sets it for hearing, “the burden shift[s] to the State to prove by a preponderance of the evidence that the evidence [is] admissible.” State v. Breeden, 306 N.C. 533 (1982), superseded on other grounds by statute, G.S. § 8C–1, Rule 404(b). A few cases have indicated that if officers were acting pursuant to a facially valid search [...]