TRIAL STAGES: Merits: Motions

2022 (October Term)

United States v. Warda, 84 M.J. 83 (the moving party for the production of evidence that is relevant and necessary under RCM 703 must show that what is being requested actually exists).

(a party seeking relief under RCM 703(f) (now RCM 703(e)) must show that the unavailable evidence is essential to a fair trial).


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).

(where the Government introduced no evidence of sexual interaction during the charged period, and where proof of improper sexual activity outside of the charged period, without more, did not demonstrate directly or by reasonable inference that appellant engaged in sexual activity with the alleged victim during the charged period, the evidence introduced by the prosecution at the close of the Government’s case was legally insufficient under RCM 917 to prove that appellant raped the alleged victim in the charged period or that he engaged in adultery with her during that period; the military judge erred by not granting the motion to dismiss those specifications).


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. Griffin, 50 MJ 278 (in the face of an appropriate motion or objection, the prosecution bears the burden of establishing the admissibility of a confession, and the military judge must find by a preponderance of the evidence that the statement was voluntarily made, considering the totality of the circumstances, including both the characteristics of the accused and the details of the interrogation).

United States v. Southworth, 50 MJ 74 (RCM 906(b)(10) provides for severance by the military judge “but only to prevent manifest injustice.”  Denial of motion to sever rape offenses was not abuse of discretion by military judge where he gave proper limiting instructions pertaining to spillover and where the government presented its case in a manner likely to preserve distinction between proof offered on each of the allegations).

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. Brownfield, 52 MJ 40 (even if military judge erred in not granting defense counsel a continuance to locate alibi witness, there was no prejudice to appellant where:  (1) the alibi witness’s testimony would have contradicted appellant’s version of events in several instances, thus undermining appellant’s credibility and his case; and, (2) the alibi witness lacked credibility).

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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