Current through Register Vol. 50, No. 9, September 20, 2024
A. General. A
motion is a request to the military judge for some particular relief, as set
forth in R.C.M. 905- 907. Motions may be oral, or in the discretion of the
military judge, in writing. Motion practice is primarily the province of the
defense counsel.
B. Kinds of
Motions. The three functional kinds of motions are "motions to dismiss,"
"motions for appropriate relief" and "motions to suppress." Another kind of
motion similar to a motion to suppress is a motion in limine.
1. A Motion to Dismiss is a request to
terminate further proceedings as to one or more charges and specifications on
grounds capable of determination without trial of the general issue of guilt.
Grounds, which include both "waivable" and "nonwaivable" bases, include statute
of limitations, speedy trial, former jeopardy, pardon, immunity, constructive
condonation of desertion, and prior punishment under LCMJ Articles 13 or 15 for
the same offense, if it is a "minor offense." "Nonwaivable" grounds include
lack of jurisdiction and failure of a specification to state an offense.
"Waivable" grounds for motion to dismiss must be made before final adjournment
of the court-martial.
2. A Motion
for Appropriate Relief is designed to remedy defects of form or substance that
require corrective action short of dismissal. It is made to cure a defect which
impedes the party from properly preparing for trial or conducting his case.
R.C.M. 906(a) lists 14 non-exclusive, different grounds for the motion for
appropriate relief.
3. A Motion to
Suppress may be directed to a confession or admission by an accused, evidence
obtained from a search or seizure or believed to belong to the accused, and/or
prior eyewitness identification of the accused. Once properly notified by trial
counsel that such evidence exists, the accused must ordinarily make the motion
to suppress the evidence before entering pleas. Absent good cause, the military
judge must conduct a hearing and make a ruling on a motion to suppress before
requiring entry of a plea.
4. A
Motion in Limine is similar to a motion to suppress in that it requests a
preliminary ruling on admissibility of evidence which must be ruled on prior to
the offering of the matter into evidence. The motion may be made by either side
before or during trial.
C. Burden/Standard of Proof. The general rule
is that where factual matters must be resolved in order to decide a motion, the
burden of persuasion is generally upon the moving party, who must prove the
matter by a "preponderance of evidence" (unless another standard, such as
"clear and convincing evidence" is specifically required.) [See, e.g., Mil R.
Evid. 313(b), regarding examination to locate weapon/contraband.]
1. Motion to Dismiss. Exception to general
rule above applies to Motions based on lack of jurisdiction, denial of speedy
trial, or running of statute of limitations, all of which place the burden on
the government.
2. Motion for
Appropriate Relief. The general rule placing the burden on the moving party by
a "preponderance of evidence" applies.
3. Motion to Suppress. Exception to the
general rule above in that the prosecution has the burden of demonstrating by a
"preponderance of the evidence" (unless a different standard is specifically
prescribed) that the offered evidence is properly admissible. [See M.R.E..
311(e), 321(d).]
4. Motion in
Limine. The burden of proof is on the proponent of the evidence.
D. Time for Filing. The general
rule is that any defense, objection, or request which is capable of
determination without the trial of the general issue of guilt may be raised
before trial. The following motions must be raised before a plea is entered:
1. defenses or objections based on defects
(other than jurisdictional defects) in the preferral, forwarding,
investigation, or referral of charges (e.g. unsworn charges, inadequate Article
32 investigation, and inadequate pretrial advice.) [See R.C.M. 307, 401-7,
601-4, 905(b)(Discussion).];
2.
defenses or objections based on defects in the charges and specifications
(other than failure to show jurisdiction or to charge an offense, which
objections shall be resolved by the military judge at any time during the
pendency of the proceedings.);
3.
motions to suppress admissibility of confessions, admissions, evidence obtained
from unlawful searches and seizures, and eyewitness identification. [See
M.R.E.. 304, 311, 321.] Challenges to admissibility of evidence on other
grounds may be raised by objection at trial or by motion in limine;
4. motions for discovery under R.C.M. 701 or
for production of witnesses or evidence;
5. motions for severance of charges or
accused;
6. objections based on
denial of request for individual military counsel or for retention of detailed
defense counsel when individual military counsel has been granted.
E. Military Judge's Essential
Findings. When factual issues are involved in determining a motion, the
military judge is obliged to state his essential findings on the record. Such
findings should contain a statement of the factual findings and essential legal
findings which support the decision on the motion.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
29:11(F).
