CORE CRIMINAL LAW SUBJECTS: Motions, Generally: Merits

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).


United States v. Jameson, 65 M.J. 160 (MRE 311(d)(2)(A) requires that motions to suppress evidence be made by the defense prior to submission of a plea; the general rule is that a failure to make the motion prior to the plea constitutes a waiver of the motion or objection; the only exception is if good cause is shown by the moving party; no good cause exists when the moving party knew or could have known about the evidence in question before the deadline).


United States v. Parker, 59 MJ 195 (under RCM 917(a), the military judge shall enter a finding of not guilty if the evidence is insufficient to sustain a conviction of the offense affected; RCM 917(d) states that a motion for a finding of not guilty shall be granted only in the absence of some evidence which, together with all reasonable inferences and applicable presumptions, could reasonably tend to establish every essential element of an offense charged; the evidence shall be viewed in the light most favorable to the prosecution without an evaluation of the credibility of witnesses).



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).


United States v. Underwood
, 50 MJ 271 (denial of a government request for delay to accommodate schedule of prosecution witness created no legally cognizable right to a trial without the prosecution witness; nor can the speculative possibility of such an occurrence be considered substantial).

United States v. Weisbeck, 50 MJ 461 (the military judge has discretion, for reasonable cause, to grant a continuance to any party for such time and as often as may appear just; Article 40, UCMJ; RCM 906(b)(1)).

(military judge abused his discretion in denying defense request for continuance where:  (1) there was no surprise in the defense desire to arrange for expert testimony; (2) the expert testimony was the heart of the intended defense strategy; (3) the request for continuance was made nine days prior to the scheduled trial date; (4) there was no available substitute for the desired defense expert; (5) the expert would have been available if the continuance had been granted; (6) the requested continuance was for less than 6 weeks; (7) the government did not assert any prejudice arising from the continuance; (8) the defense had received two prior continuances; (9) the request was made in good faith; (10) the defense acted with reasonable diligence; (11) the expert witness was key to credibility of government witnesses; and, (12) the defense had insufficient time to obtain and prepare another expert for trial).

(an unreasonable and arbitrary insistence upon expeditiousness in the face of a justifiable request is an abuse of discretion where the record reflects no reason for denying a reasonable, defense-requested continuance other than expeditious processing and a desire to hold the defense’s feet to the fire).

United States v. Jones, 52 MJ 60 (standing determines whether a party to a lawsuit may move to suppress evidence or dismiss charges; standing is conferred to allow a moving party with a personal stake in the outcome to enforce his or her rights or to prevent a serious risk of unreliable evidence being received at the movant’s trial).

(standing will not be granted to one person to challenge violations of another’s rights under Miranda v. Arizona, 384 U.S. 436 (1966), Article 31(b), UCMJ, and the Fifth Amendment right to remain silent as the privileges thereunder are personal ones that may be exercised or waived at the discretion of the individual holder of the privilege).

(an accused has standing to object to when the actions of the government impact on the reliability of the evidence presented against him 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, even where those government actions may have violated rights held personally by other than the accused).

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