TRIAL STAGES: Pretrial: Motions

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). 

(per RCM 905(b)(1), any objections asserting a defect in the preferral of charges based upon unlawful command influence needed to be raised prior to the entry of pleas; because in this case, appellant does not assert that he was deterred at trial from objecting to a coerced preferral, alleged defects were waived). 

2013 (September Term)

United States v. Flesher, 73 M.J. 303 (RCM 905(d), a motion made before pleas are entered shall be determined before pleas are entered unless the military judge for good cause orders that determination be deferred until trial of the general issue or after findings, and where factual issues are involved in determining a motion, the military judge shall state the essential findings on the record). 

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). 



United States v. Wellington, 58 MJ 420 (Article 40, UCMJ, empowers military judges, to grant a continuance for reasonable cause to any party for such time, and as often, as may appear to be just; reasonable cause includes insufficient opportunity to prepare for trial).

(broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay will result in reversal; on the other hand, possible loss of witnesses is a valid consideration in deciding whether to deny a continuance).

(appellant did not establish any prejudicial error in the denial of his motion for a continuance that was sought to review the victim's medical records in order to determine her medications, her mental status, and the times when she was hallucinating; appellant's counsel cross-examined the victim's doctors about these matters at trial; appellant failed to show what he would have done differently if the government had responded to his discovery request in a timely manner).


United States v. Roland
, 50 MJ 66 (defense must come forward with initial showing of improper member selection, then the government must demonstrate that no impropriety occurred).

United States v. Scott, 51 MJ 326 (MRE 304(d)(4) required any motion to suppress or objection to statements made by the accused to be submitted prior to the pleas; such motions may be deferred for good cause).

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