For decades, criminal defense attorneys would file motions to suppress evidence after trial juries were sworn. This meant that if the judge agreed to suppress evidence the government could not appeal because the bar against double jeopardy attaches when the jury is sworn. Last week, the Kentucky Supreme Court amended the Rules of Criminal Procedure, effective January 2015. The new Rule mandates that defense attorneys must file suppression motions in advance of trial. This amendment gives the government an opportunity to appeal a suppression order before jeopardy attaches.
There was no evidence that defense attorneys were abusing the prior Rule. Frequently, suppression issues arise after the trial begins based on the testimony of government witnesses or the late production of discovery. Nevertheless, it is important that all criminal defense attorneys be aware of the new Rule's requirements and file appropriate suppression motions well in advance of trial.
