CORE CRIMINAL LAW SUBJECTS: Motions, Generally: Motions to Dismiss


United States v. Fulton
, 55 MJ 88 (where no other remedy is appropriate, a military judge may, in the interests of justice, dismiss charges because of unlawful pretrial punishment; the fact that illegal pretrial punishment is not listed among the illustrative bases for dismissal in RCM 907(b) does not preclude dismissal where appropriate).

(even though dismissal may be an appropriate remedy for illegal pretrial punishment, it does not follow that dismissal is the appropriate remedy in a given case; dismissal is not necessarily appropriate even where an appellant has been denied a significant constitutional right).

(although illegal pretrial punishment is not condoned, in the context of competing interests, the extraordinary remedy of dismissal of the charges is not required as a matter of law).


United States v. McElhaney, 54 MJ 120 (the provisions of the Victims of Child Abuse Act (18 USC 3283) demonstrate a congressional intent to apply its provisions in federal district courts, not courts-martial; the VCCA’s statute of limitations does not provide a procedure that is necessary to the proper functioning of the other components of the Act, and the question of whether the policy behind the extended statute of limitations in the VCCA warrants application in courts-martial is a matter for consideration by Congress).

(court below erred when it applied the extended statute of limitations in the Victims of Child Abuse Act, 18 USC 3283, to appellant’s court-martial; Article 43 provides the applicable statute of limitations).

Home Page  |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site