R.I. Super. Ct. R. Crim. P. 12

As amended through April 4, 2024

Rule 12 - Pleadings and Motions before Trial-defenses and Objections.

(a)Pleadings and Motions. Pleadings in criminal proceedings shall be the indictment, information, or complaint, and the pleas of not guilty, guilty and nolo contendere. All other pleas, demurrers, and motions to quash are abolished and defenses and objections raised before trial which heretofore could have been raised by one (1) or more of them shall be raised only by motion to dismiss or to grant appropriate relief, as provided in these rules.

(b)The Motion Raising Defenses and Objections.

(1)Defenses and Objections Which May Be Raised. Any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion.

(2)Defenses and Objections Which Must Be Raised. The defense of double jeopardy and all other defenses and objections based on defects in the institution of the prosecution or in the indictment, information, or complaint, other than that it fails to show jurisdiction in the court or to charge an offense, may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment, information, or complaint to charge an offense may be raised by suggestion of the parties or the court at any time during the pendency of the proceeding.

(3)Time of Making Motion. The motion shall be made no later than thirty (30) days after the plea is entered, except that if the defendant has moved pursuant to Rule 9.1 to dismiss, it shall be made within thirty (30) days after entry of an order disposing of that motion; but in any event the court may permit the motion to be made within a reasonable time after the plea is entered or a Rule 9.1 motion has been determined.

(4)Hearing on Motion. A motion before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue.

(5)Effect of Determination. If a motion is determined adversely to the defendant, the defendant shall be permitted to plead if the defendant had not previously pleaded. A plea previously entered shall stand. If the court grants a motion based on a defect in the institution of the prosecution or in the indictment, information, or complaint, the court may also order that the defendant be held in custody or that the defendant's bail be continued for a specified time pending the filing of a new indictment, information, or complaint.

(c)Defense of Insanity.

(1)Notice. If a defendant who pleads not guilty intends to rely in any way on the defense of insanity, the defendant shall no later than thirty (30) days after the defendant enters the defendant's plea file a written notice of such intention with the court and serve a copy thereof upon the Attorney General. The notice shall contain the names and addresses of persons the defendant intends to call as witnesses to establish that the defendant was insane at the time of the alleged offense. In the event the defendant gives notice that the defendant intends to rely on the defense of insanity, the Attorney General shall, not later than thirty (30) days prior to commencement of trial, file with the court and serve upon the defendant a written notice stating the names and addresses of persons whom the State intends to call as witnesses to establish the defendant's sanity at the time of the alleged offense.

(2)Failure to Comply. In the event a notice is not filed and served as required by this subdivision, the court may refuse to permit the party in default to present evidence at the trial with respect to the defense of insanity, or may in its discretion enter such other order as it deems appropriate under the circumstances, including an extension of time to file the notice if deemed necessary.

(d)Motion for a Speedy Trial. When a Motion for a Speedy Trial is filed by a defendant, the attorney for the defendant shall send a copy to the Attorney General. The motion shall then be assigned for hearing.

(e)Motion to Dismiss for Failure to Obtain a Speedy Trial. When a Motion to Dismiss for Failure to Obtain a Speedy Trial is filed, the attorney for the defendant shall send a copy to the Attorney General, The motion shall then be assigned for hearing.

R.I. Super. Ct. R. Crim. P. 12

As amended by the court on 7/1/2002; last amended by Order dated June 22, 2017, effective 9/5/2017.

2002 Committee Notes

The time period in paragraph (b)(3) of the rule, in which to file a motion raising defenses and objections, is enlarged from twenty-one (21) days to thirty (30) days following the entry of a plea or the disposition of a motion to dismiss an information based on lack of probably cause. Defense counsel sometimes needs the additional time to investigate, research, prepare, and file the motion.

Paragraph (c)(2) of the rule is amended to make it clear that, if notice of the intent to rely on the defense of insanity is not filed within thirty (30) days following the entry of a plea, the court may, among other options, extend the time period within which to file the notice. It is sometimes difficult to adequately investigate a possible insanity defense within the thirty (30) day time period.

Other changes in the rule are technical in nature and not intended to change the substance of the rule.

1983 Notes

The addition of (d) and (e) to the Rule requires defense counsel to send copies of these Motions to the Criminal Scheduling Office, and the placing of these Motions by that office on the Daily Criminal Calendar. The Court will thus be made aware of the filing of such Motions and the action taken thereon.

1975 Notes

Rule 12 has been amended to add the term "information" where appropriate in subdivision (a) and (b). In addition, subdivision (b)(3) has been amended to provide that if a defendant moves to dismiss an information for lack of probable cause, his time to make his motion under Rule 12 (raising defenses and objections) shall commence with the determination of the motion to dismiss.

See also 1975 Notes to Rule 7.

1972 Notes

This rule, which is fashioned in large part upon its federal counterpart, differs significantly from both Federal Rule 12 and existing Rhode Island practice.

Subdivision (a), which is essentially the same as the federal rule, abolishes the complicated special pleas, demurrers and motions of common law procedure and replaces them with the pre-trial motion to dismiss or to grant particular relief. This is designed to eliminate the hazardous, and frequently mystifying, choices attorneys have been required to make in order to raise various legal objections. See Advisory Committee Notes, 4 F.R.D. 405, 413 (1945).

Subdivision (b) is the same as its federal counterpart except for the requirement contained in paragraph (2) that the defense of double jeopardy be raised by pre-trial motion. The requirements of this subdivision are in accord with existing Rhode Island practice which requires that the defense of former jeopardy, as well as objections to defects in the institution of the prosecution and in the indictment or complaint, be raised prior to entry of a general plea. See, e.g., State v. Pearson, 49 R.I. 386, 391, 143 A. 413, ___ (1928); State v. Maloney, 12 R.I. 251 (1879); State v. Cucca, 102 R.I. 95, 228 A.2d 572 (1967).

Subdivision (b)(3), which departs from the federal rule by requiring that motions under this rule be made no later than twenty-one days after the plea is entered rather than prior to entry of plea, accords with customary Rhode Island practice under which defense lawyers typically request and are granted permission to make their pre-trial motions after the plea is entered. See State v. Douglas, 78 R.I. 60, 63, 78 A.2d 850, 852 (1951). The proposed rule recognizes the practical difficulties in making these motions at the time of pleading and thus, with few exceptions, should eliminate applications for extensions of time to make pre-trial motions.

Subdivision (b)(4) and (b)(5) are generally in accord with existing Rhode Island practice. Paragraph (4) differs from its federal counterpart by the deletion of the two concluding sentences of this portion of the federal rule which deal with the question of who is to try issues of fact raised by pre-trial motions. That provision, which merely reflects the requirements imposed by Constitution and statute, was deemed to be superfluous and therefore has been deleted. The final sentence of paragraph (5), under which a defendant who has successfully moved to dismiss an indictment or complaint because of a defect in the institution of the prosecution can be continued in custody or on bail pending a new indictment or complaint, will be an innovation in Rhode Island practice.

Subdivision (c) of the proposed rule is not contained in the federal rule and is an innovation in Rhode Island practice. Under paragraph (1) a defendant who intends to rely upon the defense of insanity is required prior to trial to give written notice of this defense to the court and the prosecution. The notice must provide the names and addresses of the witnesses the defendant intends to call to sustain the defense; thereupon, the prosecution is placed under a concomitant duty to disclose its witnesses on this issue. The United States Supreme Court has upheld as not violative of the Fourteenth and Fifth Amendments a requirement that defendants give advance notice of certain affirmative defenses. Williams v. Florida, 399 U.S. 78, 80-86, 90 S.Ct. 1893, 1895-1899, 26 L.Ed.2d 446 (1970). The principle established in that case clearly supports this provision.

The sanction, provided in paragraph (2), of excluding evidence at the trial in support of or in opposition to this defense for failure to comply with the rule has not as yet been approved by the Supreme Court. In Williams, the Court pointed out that the case did not involve and, therefore, it was not passing upon any Sixth Amendment issues possibly arising out of exclusion of a defendant's evidence where he fails to comply with this type of notice requirement. 399 U.S. at 83, note 14.