Many people are confused as to the use of an evidentiary hearing in a federal criminal case. An evidentiary hearing is a term used to describe a proceeding where evidence, such as witness or expert testimony and documentation is presented to the court in order to reach a decision on a particular matter. These hearings generally take place prior to trial.

Prior to the court’s scheduling of an evidentiary hearing, a defendant must establish his or her right to one. This occurs when a defendant’s motion and the government’s response to such motion establish a dispute as to material facts. As such, a good federal criminal defense lawyer will allege specific and detailed facts to make the court aware of disputed issues of fact that must be resolved. Although popular, general assertions of constitutional violations will not compel a court to conduct an evidentiary hearing.

From the standpoint of formulating defense strategy pretrial motions and evidentiary hearings can be a valuable tool. For example, a pretrial suppression motion requiring an evidentiary hearing typically will lead to the disclosure of additional discovery earlier than usual. This discovery can be invaluable for trial preparation.

That’s not to say that a criminal defense lawyer should file numerous, frivolous pretrial motions. This is definitely an unwise strategy and will only serve to agitate the court. Use pretrial motions wisely and opportunities for evidentiary hearings will become available. Maximize your defensive strategy by using such hearings as an opportunity to obtain additional discovery.

The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or

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