La. Admin. Code tit. 41 § II-605
Current through Register Vol. 50, No. 8, August 20, 2024
A. General. A motion is a request to the military judge for some particular relief, as set forth in R.C.M. 905- 907. Motions may be oral, or in the discretion of the military judge, in writing. Motion practice is primarily the province of the defense counsel.B. Kinds of Motions. The three functional kinds of motions are "motions to dismiss," "motions for appropriate relief" and "motions to suppress." Another kind of motion similar to a motion to suppress is a motion in limine. 1. A Motion to Dismiss is a request to terminate further proceedings as to one or more charges and specifications on grounds capable of determination without trial of the general issue of guilt. Grounds, which include both "waivable" and "nonwaivable" bases, include statute of limitations, speedy trial, former jeopardy, pardon, immunity, constructive condonation of desertion, and prior punishment under LCMJ Articles 13 or 15 for the same offense, if it is a "minor offense." "Nonwaivable" grounds include lack of jurisdiction and failure of a specification to state an offense. "Waivable" grounds for motion to dismiss must be made before final adjournment of the court-martial.2. A Motion for Appropriate Relief is designed to remedy defects of form or substance that require corrective action short of dismissal. It is made to cure a defect which impedes the party from properly preparing for trial or conducting his case. R.C.M. 906(a) lists 14 non-exclusive, different grounds for the motion for appropriate relief.3. A Motion to Suppress may be directed to a confession or admission by an accused, evidence obtained from a search or seizure or believed to belong to the accused, and/or prior eyewitness identification of the accused. Once properly notified by trial counsel that such evidence exists, the accused must ordinarily make the motion to suppress the evidence before entering pleas. Absent good cause, the military judge must conduct a hearing and make a ruling on a motion to suppress before requiring entry of a plea.4. A Motion in Limine is similar to a motion to suppress in that it requests a preliminary ruling on admissibility of evidence which must be ruled on prior to the offering of the matter into evidence. The motion may be made by either side before or during trial.C. Burden/Standard of Proof. The general rule is that where factual matters must be resolved in order to decide a motion, the burden of persuasion is generally upon the moving party, who must prove the matter by a "preponderance of evidence" (unless another standard, such as "clear and convincing evidence" is specifically required.) [See, e.g., Mil R. Evid. 313(b), regarding examination to locate weapon/contraband.] 1. Motion to Dismiss. Exception to general rule above applies to Motions based on lack of jurisdiction, denial of speedy trial, or running of statute of limitations, all of which place the burden on the government.2. Motion for Appropriate Relief. The general rule placing the burden on the moving party by a "preponderance of evidence" applies.3. Motion to Suppress. Exception to the general rule above in that the prosecution has the burden of demonstrating by a "preponderance of the evidence" (unless a different standard is specifically prescribed) that the offered evidence is properly admissible. [See M.R.E.. 311(e), 321(d).]4. Motion in Limine. The burden of proof is on the proponent of the evidence.D. Time for Filing. The general rule is that any defense, objection, or request which is capable of determination without the trial of the general issue of guilt may be raised before trial. The following motions must be raised before a plea is entered: 1. defenses or objections based on defects (other than jurisdictional defects) in the preferral, forwarding, investigation, or referral of charges (e.g. unsworn charges, inadequate Article 32 investigation, and inadequate pretrial advice.) [See R.C.M. 307, 401-7, 601-4, 905(b)(Discussion).];2. defenses or objections based on defects in the charges and specifications (other than failure to show jurisdiction or to charge an offense, which objections shall be resolved by the military judge at any time during the pendency of the proceedings.);3. motions to suppress admissibility of confessions, admissions, evidence obtained from unlawful searches and seizures, and eyewitness identification. [See M.R.E.. 304, 311, 321.] Challenges to admissibility of evidence on other grounds may be raised by objection at trial or by motion in limine;4. motions for discovery under R.C.M. 701 or for production of witnesses or evidence;5. motions for severance of charges or accused;6. objections based on denial of request for individual military counsel or for retention of detailed defense counsel when individual military counsel has been granted.E. Military Judge's Essential Findings. When factual issues are involved in determining a motion, the military judge is obliged to state his essential findings on the record. Such findings should contain a statement of the factual findings and essential legal findings which support the decision on the motion.La. Admin. Code tit. 41, § II-605
Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2399 (November 2009).AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).