CORE CRIMINAL LAW SUBJECTS: Motions, Generally: Pretrial


2021 (October Term)

United States v. Givens, 82 M.J. 211 (RCM 905(b)(1) requires that any pretrial motion asserting defenses or objections based on defects (other than jurisdictional defects) in the preferral, forwarding, or referral of charges, or in the preliminary hearing, must be raised before a plea is entered; thus, challenges alleging defects in the preferral of the charges must be raised prior to entry of pleas). 

(at the time of trial in this case, RCM 905(e) provided that the failure by a party to raise defects in the preferral of charges prior to entry of pleas constituted waiver; however, the military judge for good cause shown may grant relief from the waiver). 

(claims of defective preferral based on allegations of unlawful command influence (e.g. coerced preferral) must be raised prior to entry of pleas, and such claims are subject to waiver unless the military judge relieves that party from the waiver after a showing of good cause). 

2020 (October Term)

United States v. Henry, 81 M.J. 91 (RCM 905(d) provides that where factual issues are involved in determining a motion, the military judge shall state the essential findings on the record; it is those findings that provide appellate courts the ability to review the military judge’s rulings; the fact that there was other evidence available to the military judge to support his ruling does not mean that he considered it or found it credible unless he says so in his essential findings).

2010 (September Term)

United States v. Savard, 69 M.J. 211 (when one of the parties so requests, RCM 905(h) requires that the military judge hold a hearing on a written motion).

2008 (Transition)

United States v. Mackie, 66 M.J. 198 (a military judge has the authority to order a sanity board after referral under RCM 706 if it appears there is reason to believe the accused lacked mental responsibility at the time of a charged offense or lacks the capacity to stand trial; a motion for a sanity board should normally be granted if it is made in good faith and is not frivolous). 



United States v. Johnson, 53 MJ 459 (where an accused has sufficiently important, legally-cognizable interests in the materials or testimony sought, and thereby has standing, there is no reason why a third-party challenge either to a subpoena duces tecum or a subpoena ad testificandum could not be raised during an Article 32 investigation).

(standing to object to a subpoena duces tecum or a subpoena ad testificandum during an Article 32 investigation exists when the actions of the government impact upon the reliability of the evidence presented against an accused at trial, e.g., coerced confessions, unlawful command influence, interference with the rights of confrontation or cross-examination, and interference with the right to present evidence).

(where testimony of accused’s wife at Article 32 investigation was secured by means of an illegally ordered German subpoena, accused lacked standing to object where: appellant was neither deprived of a right nor hindered in presenting his case; appellant and his counsel attended the Article 32; appellant had full notice of the witnesses against him and did not object to his wife’s testimony at the Article 32; appellant had the opportunity to confront his wife and did cross-examine her at the Article 32; and the testimony of the wife at the Article 32 investigation was reliable).




United States v. Giles, 59 MJ 374 (as a matter of policy, ordinarily, all known charges should be tried at a single court-martial; as a matter of law, a party may move for trial of designated offenses at a separate court-martial through a motion for severance of offenses, but only to prevent manifest injustice).


(under RCM 906(b)(10), a military judge is required to grant a severance motion when necessary to avoid a manifest injustice). 


(in this case, the Government’s decision to try the perjury charge at the rehearing on the underlying drug-related specifications instead of ordering a separate trial created a substantial risk of impermissible crossover; the questions raised by the president of the panel, based on the evidence admitted under the military judge’s limiting instruction, demonstrated that the senior member of the panel had a reasonable basis for concluding that appellant had been tried, convicted, and sentenced to a discharge for the same drug-related specifications that were now under consideration; the military judge permitted the Government to introduce evidence on the perjury charge under which the members could reasonably conclude that appellant had been tried and convicted in the first trial of the same drug-related specifications that were before them in the second trial, and they also could reasonably conclude that something had happened between the first and second trials to convince the Government that appellant had lied at the first trial when she denied that she had knowingly purchased an illegal substance; under these circumstances, the perjury evidence was both irrelevant and highly prejudicial to appellant’s right to receive a fair trial on the drug-related specifications; the limiting instruction by the military judge, repeated without any meaningful amplification after the president of the court-martial identified the prejudicial nature of the evidence, simply told the members to suspend their understanding of the basic mechanics of the military justice system; as such, the instructions were insufficient to prevent a manifest injustice; under the facts of this case, the rulings by the military judge on both pretrial motions and evidentiary objections produced errors that caused actual prejudice and prevented the accused from receiving a fair trial).



United States v. Simpson, 56 MJ 462 (the military justice system encourages the joinder of all known offenses at one trial and permits a motion for severance of offenses only to prevent manifest injustice).

(military judge’s decision on a motion to sever is reviewed for an abuse of discretion).

(an abuse of discretion will be found only where the defendant is able to show that the denial of a severance caused him actual prejudice in that it prevented him from receiving a fair trial; it is not enough that separate trials may have provided him with a better opportunity for an acquittal).

(to determine whether a military judge has failed to prevent a manifest injustice and denied an appellant a fair trial by denying a motion to sever, a three-prong test is applied: (1) whether the evidence of one offense would be admissible proof of the other; (2) whether the military judge provided a proper limiting instruction; and (3) whether the findings reflect an impermissible crossover).

(the military judge did not abuse his discretion in denying appellant’s motion for a severance where: (1) offenses occurring earlier in time were admissible for the limited purpose of demonstrating appellant’s tendency to take advantage sexually of women who were intoxicated or under the influence of alcohol; (2) the members were given proper instructions, including a limiting instruction; and, (3) in light of the military judge’s instructions and the evidence of record, the findings did not reflect an impermissible crossover).



United States v. Duncan, 53 MJ 494 (joinder of offenses at a court-martial is more permissive than joinder in federal district court; but where offenses are “the same or similar” in character, they may be joined for trial in both systems).

(a military judge, like a federal district court judge, has discretionary power to sever the trial of certain offenses; an abuse of that discretion will be found only where the defendant is able to show that the denial of a severance caused him actual prejudice in that it prevented him for receiving a fair trial).

(although recognizing that evidence of one rape and brutalization would not be admissible to show another rape and brutalization a month earlier, military judge did not abuse his discretion in refusing to sever charges where:  (1) he gave limiting instructions three times to consider the offenses separately; (2) he took steps to bifurcate the presentation of evidence and argument by trial counsel to prevent spillover; and (3) court could be confident that members were able to follow instructions to consider offenses separately).

(military judge did not abuse his discretion in refusing to sever charges and determining that appellant’s defenses would not be confounded or destroyed by a joint trial where:  appellant’s defenses, raised on different occasions with respect to different alleged victims, were neither logically nor practically inconsistent; (2) the fact that appellant asserted his right to remain silent with respect to crimes against one victim but not with respect to crimes against another victim did not require severance; and (3) consideration of all the circumstances supported the conclusion that there was no abuse of discretion).

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