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16. Motions

Chapter 16

Motions

 

  1.       Introduction

  2.       Motions Generally.  R.C.M. 905

  3.       Motions for Appropriate Relief.  R.C.M. 906

  4.       Motions to Suppress

  5.       Motions to Dismiss.  R.C.M. 907

  6.       Mistrial.  R.C.M. 915

  7.       Motions for Finding of Not Guilty.  R.C.M. 917

  8.       Post-Trial Sessions.  R.C.M. 1104

  9.       Motions Waiver Checklist

  10.       Special Victim Counsel (SVC) Program Impact

  11.       Getting Better by Reading

 

 

I. Introduction

A. This chapter covers the “science” of motions--a rule-by-rule breakdown of the motions you are likely to face in practice.  Guidance on the “art” of motions practice, including effective motions practice techniques and templates, can be found in the Advocacy Trainer.

B. Effect of the 2016 Military Justice Act (2016 MJA) on motions practice.  The effect of the 2016 MJA is likely to be significant and difficult to predict.  Practitioners should have in mind two different major categories of change.  First, practitioners should be aware of the substantive changes.  For example, practitioners should understand the changes to the Articles, and the accompanying rules.  These changes are likely to be the most obvious; however, practitioners should also take care to evaluate how those changes may have an impact on other unchanged rules.  For example, the new impanelment procedures will likely have an impact on voir dire, even though the Article and the implementing voir dire Rule remain largely unchanged.  Second, practitioners should be aware of how the rules have been recodified to reflect the substantive changes.  For example, new rules have been added.  Some paragraphs have been shifted around.  Because many of the rules have been re-numbered, practitioners should carefully revalidate the knowledge of the old rules in light of the new rules to determine whether their substantive arguments are correct.  It is not enough to cite a rule for a proposition—practitioners should take care to re-visit the rule and ensure that the rule has not changed.  A goal of this edition of the Deskbook is to assist practitioners in understanding the changes.

C. The following Rules for Courts-Martial and Military Rules of Evidence govern motions practice and form the content of this section of the chapter:

1. R.C.M. 905.  Motions generally.

2. R.C.M. 906.  Motions for appropriate relief.

3. R.C.M. 907.  Motions to dismiss.

4. R.C.M. 915.  Mistrial.

5. R.C.M. 917.  Motion for a finding of not guilty.

6. R.C.M. 1102.  Post-trial sessions.

7. M.R.E. 304.  Confessions and admissions.

8. M.R.E. 311.  Search and seizure.

9. M.R.E. 321.  Eyewitness identification.

II. Motions Generally.  R.C.M. 905

A. Definition.

1. General.  A motion is a request to the judge for particular relief.

2. Grounds.  Based on specific grounds (rule or case law).

3. Notice.  Notice should be given to the judge and opposing counsel.

4. Hearings

a. May be litigated at an Article 39(a) session, usually after arraignment, before a plea is entered.  

b. When one of the parties so requests, R.C.M. 905(h) requires that the military judge hold a hearing on a written motion.  See United States v. Savard, 69 M.J. 211 (C.A.A.F. 2010).

c. An ex parte hearing may be conducted to determine whether to grant a pre-referral warrant or subpoena.  R.C.M. 309.

5. Rules of Evidence. 

a. General Rule.  The rules of evidence apply at all court-martial sessions, to include Article 39(a) sessions.  M.R.E. 1101(a).

b. Exceptions.  The rules of evidence (except those with respect to privileges) do not apply when the judge is deciding the following preliminary questions:  whether a witness is available or qualified, whether a privilege exists, whether a continuance should be granted, whether evidence is admissible, or whether the accused is competent.  See M.R.E. 104(a) and R.C.M. 909(e)(2).  

B. General Requirements

1. Factual Predicate.  A motion must be supported by evidence.  An offer of proof is permissible, but is disfavored especially where contradicted.

a. United States v. Hodge, 26 M.J. 596 (1988) (A.C.M.R. 1988), aff’d, 29 M.J. 304 (C.M.A. 1989).  An offer of proof should be specific and should include the names and addresses of witnesses and a summary of expected testimony.

b. United States v. Stubbs, 23 M.J. 188 (C.M.A.), cert. denied, 484 U.S. 846 (1987).  “[T]rial judges should not let the litigants lapse into a procedure whereby the moving party will state the motion and then launch right into argument without presenting any proof but buttressing his/her argument with the assertion that so and so would testify as indicated, if called.  The other party then counters with his/her own argument and offers of proof ... Do not let counsel stray into stating what someone would say if they were called.  Force them to call the witness, provide valid real and documentary evidence or provide a stipulation.  Sticking to proper procedure will save you time and grief and provide a solid record.”  Id. at 195.

c. United States v. Alexander, 32 M.J. 664 (1991) (A.F.C.M.R. 1991), aff’d, 34 M.J. 121 (C.M.A. 1992).  Court notes that “Counsel based much of their arguments on offers of proof; although opposing counsel frequently disagreed with the proffers, no additional evidence was tendered”  Counsel and judges must be careful to establish a proper factual basis for evidentiary rulings.  Id. at 667 n.3.

2. Notice. 

a. Written motions shall be served on all parties.  R.C.M. 905(i).

3. Local judiciary rules. 

a. General.  Rules issued by a trial judiciary or local court may be valid, so long as they do not conflict with the Manual for Courts-Martial.  See United States v. Williams, 23 M.J. 362 (C.M.A. 1987). 

b. The Rules for Practice before Army Courts-Martial should be consulted before filing a motion with the court-martial.

4. Timing of motions

a. Some motions must be made prior to the plea or else they are waived, absent good cause.  R.C.M. 905(b) and (e).  These motions are:

(1) Defects in the charges and specifications.

(2) Defects in preferral, forwarding, and referral.

(3) Suppression of evidence.

(4) Discovery and witness production.

(5) Severance of charges, specifications, or accused.

(6) Individual Military Counsel (IMC) requests.

b. Motions which should be made before final adjournment (or else waived).

(1) Continuance.  R.C.M. 906(b)(1).

(2) Speedy trial.  R.C.M. 907(b)(2)(A).    But see United States v. Mizgala, 61 M.J. 122, 127 (2005) (stating that a speedy trial right under Article 10 should not be subject to rules of “waiver and forfeiture associated with guilty pleas”).

(3) Release from pretrial confinement. R.C.M. 906(b)(8).

(4) Statute of limitations.  R.C.M. 907(b)(2)(B).

(5) Former jeopardy.  R.C.M. 907(b)(2)(C).

(6) Grant of immunity.  R.C.M. 907(b)(2)(D).

(7) Failure to state an offense.  R.C.M. 907(b)(2)(E).

c. Motions which may be made at any time, including appellate review.

(1) Lack of jurisdiction over accused or offense.  R.C.M. 907(b)(1).

(2) Unlawful command influence (adjudicative phase).  Cf. United States v. Weasler, 43 M.J. 15 (1995)(Pretrial agreement initiated by accused waived any objection to UCI on appeal.  Waiver of UCI in accusatory phase, as distinguished from adjudicative stage, is permissible).

(3) Speedy Trial (Article 10).  If defense raises an Article 10 violation prior to entry of plea, a subsequent plea of guilty does not waive appellate review of this issue.  Additionally, failure to raise an Article 10 motion prior to plea may not result in forfeiture of the issue for purposes of appeal.  See United States v. Mizgala, 61 M.J. 122, 127 (2005) (stating that a speedy trial right under Article 10 should not be subject to rules of “waiver and forfeiture associated with guilty pleas”).

C. Waiver – R.C.M. 905(e)

1. General Rule.  Failure to comply with timeliness requirements is generally considered a waiver unless the military judge finds good cause to consider the untimely motion. The rules “should be liberally construed in favor of permitting an accused the right to be heard fully in his defense.”  United States v. Coffin, 25 M.J. 32, 34 (C.M.A. 1987).  There is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege.  See United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011).

2. Exception – Good Cause.  Where the accused has “good cause” for its failure to raise the issue, the accused may generally raise the waived issue.  Inability to discover the issue due to “sandbagging” by the government constitutes good cause.  United States v. Coffin, 25 M.J. 32, 34 (C.M.A. 1987).  On the other hand, where the military judge has “fully probed” the defense counsel’s reasons for not making a timely motion, and where the prosecution “did nothing to contributed to the defense decision not to file the motion,” there is not good cause to later raise the issue.  United States v. Jameson, 65 M.J. 160 (CAAF 2007).

D. Burden of Proof – R.C.M. 905(c)

1. Who has the burden?

a. The moving party – R.C.M. 905(c)(1) and (2),

b. Except, the Government has the burden of proof for:

(1) Jurisdiction – R.C.M. 905(c)(2)(B).

(2) Speedy trial – R.C.M. 905(c)(2)(B).

(3) Statute of limitations – R.C.M. 905(c)(2)(B).

(4) Suppression motions: confessions, evidence, identifications – M.R.E. Sect. III.

(5) Unlawful command influence.

2. What is the standard?

a. Preponderance of evidence. R.C.M. 905(c)(1)

b. Clear and convincing evidence standard for subterfuge inspections (three triggers for higher standard) (M.R.E. 313(b)); consent searches (M.R.E. 314(e)(5)); and, “unlawful” identifications (M.R.E. 321). 

c. Command influence.  When defense raises an issue of UCI at trial by some evidence sufficient to render a reasonable conclusion in favor of the allegation, burden shifts to the Government to prove, beyond a reasonable doubt (United States v. Biagase, 50 M.J. 143 (1999)) that command influence did not occur.  If the Government is unable to do so, then the trial court (or the appellate court) must be satisfied beyond a reasonable doubt that the findings and sentence were unaffected.   See United States v. Thomas, 22 M.J. 388 (C.M.A. 1986), cert. denied, 479 U.S. 1085 (1987) (reviewing court may not affirm the findings and sentence unless it is persuaded beyond a reasonable doubt that the findings and sentence have not been affected by the existence of unlawful command influence).

E. Appeal of Rulings.

1. Defense:  extraordinary writs.

2. Government appeals:  R.C.M. 908.

F. Effect of a Guilty Plea.

1. General rule:  guilty plea waives all issues which are not jurisdictional or do not deprive an accused of due process.    Waived by guilty plea:

a. Suppression of evidence, confessions, identifications.

(1) See, e.g., United States v. Cooper, 32 M.J. 83 (C.M.A. 1991) (accused who pleaded guilty without condition or restriction to offense of adultery did not preserve for appellate review his motion to suppress items seized in an illegal search by pleading not guilty to rape of the same victim at the same place and time).

(2) See, e.g., United States v. Hinojosa, 33 M.J. 353 (C.M.A. 1991).  Accused’s motion to suppress statements to CID was denied.  Accused then entered guilty pleas to some of the offenses and not guilty to the remaining offenses.  The government, however, elected to present no evidence on the contested allegations and those specifications were dismissed.  Accused’s guilty pleas foreclosed any appellate relief from the unsuccessful suppression motion.

(3) United States v. Robinson, 77 M.J. 303 (CAAF 2017).  Failure to raise suppression motion prior to entry of plea waived the issue where the adverse evidence was disclosed prior to arraignment.

b. Pretrial processing defects.

c. Unreasonable multiplication of charges.  See United States v. Hardy, 77 M.J. 438 (CAAF 2018) (finding that an unconditional entry of a guilty plea waived the issue of unreasonable multiplication of charges).

2. Not waived by guilty plea:

a. Jurisdiction.  United States v. Conklan, 41 M.J. 800, 805 (A. Ct. Crim. App. 1995) (accused may not bargain away “non-frivolous, good faith claims of lack of jurisdiction and transactional immunity.”)

b. Article 10 violation.  Mizgala, 61 M.J. at 127. See United States v. Dubouchet, 63 M.J. 586 (2006) distinguishing Mizgala as standing for the proposition that only litigated Article 10 issues survive a waiver stemming from a guilty plea.

c. Failure to allege an offense.

d. Adjudicative phase unlawful command influence.  See United States v. Hill, 2017 CCA LEXIS 477 (AFCCA 2017) (finding guilty plea did not waive adjudicative phase UCI); see also United States v. Weasler, 43 M.J. 15 (condition in PTA waiving accusatory phase command influence, originating from defense, does not violate public policy).

e. Post-trial defects.

3. Another Exception.  United States v. Lippoldt, 34 M.J. 523 (1991) (A.F.C.M.R. 1991).  Prior to entry of plea, defense moved to require the prosecution to elect to proceed on either conspiracy to possess marijuana or distribution of same marijuana as an aider or abettor.  Military judge wanted the pleas entered as a basis for development of the facts so that he could decide the motion.  No waiver.

G. Conditional Guilty Plea.  R.C.M. 910(a)(2).  Will not waive pretrial motions made a part of the conditional guilty plea.

III. Motions for Appropriate Relief.  R.C.M. 906

A. General.  A motion for appropriate relief is a request for a ruling to cure a defect which deprives a party of a right or hinders a party from preparing or presenting its case.

B. Continuances.  Some common grounds:

1. Witness unavailable.  Continuance requested.  See, e.g., United States v. Mow, 22 M.J. 906 (1986) (N.M.C.M.R. 1986); United States v. Maresca, 28 M.J. 328 (C.M.A. 1989). 

2. Obtaining civilian counsel.

a. Three tries you’re out.  United States v. Thomas, 22 M.J. 57 (C.M.A. 1986) (Military judge did not abuse discretion in refusing the accused a fourth continuance to permit attendance of civilian counsel where judge had gone to great lengths to accommodate accused’s wishes and where civilian counsel failed to make even a written appearance.)

b. Compare United States v. Wilson, 28 M.J. 1054 (1989) (N.M.C.M.R. 1989) (Judge abused discretion in denying civilian counsel’s only request for delay after he had made a personal appearance and could not try case earlier due to “existing professional obligations.”)

3. Illness of counsel, judge, witness, member.

4. Order of trial of related cases.

5. Insufficient opportunity to prepare.  United States v. Galinato, 28 M.J. 1049 (1989) (N.M.C.M.R. 1989) (finding the military judge denied assistance of counsel where, after he denied a request for delay, defense counsel went “on strike” and refused to participate in case)

C. Motions Concerning Charges and Specifications.  R.C.M. 307; 906.

1. Amend charges or specifications.  R.C.M. 603, 906(b)(4).

2. Bill of particulars.  R.C.M. 906(b)(6).

3. Multiplicity.  R.C.M. 307, 906(b)(12), 907(b)(3)(B), 1003(c)(1)(C).

4. Sever duplicitous specifications.  R.C.M. 307, 906(b)(5).

5. Sever offenses, but only to prevent manifest injustice.  R.C.M. 906(b)(10).  In United States v. Giles, 59 M.J. 374 (2004), the CAAF held that a military judge abused his discretion in denying the appellant’s motion for severance of new perjury charges on a rehearing of an earlier drug-related attempt offense.  In order to prove the perjury charge, the Government had to prove a materiality element, which required evidence of the earlier conviction.  The CAAF stated that the MJ’s ruling caused actual prejudice to the accused and prevented a fair trial.

D. Defective Article 32 Investigation or Pretrial Advice.  R.C.M. 405, 406.

E. Discovery.  R.C.M. 701, 914.

F. Witness Production.  R.C.M. 703, 1001.

G. Individual Military Counsel or Detailed Counsel Request.  R.C.M. 506.

H. Pretrial Restraint.  R.C.M. 305.

I. Mentally Incompetent to Stand Trial.  R.C.M. 706; 909; 916.

J. Change Location of Trial.  R.C.M. 906(b)(11).

K. Sever Accused.  R.C.M. 307; 906(b)(9).

L. Reopen Case.  R.C.M. 913(c)(5).  United States v. Fisiorek, 43 M.J. 244 (C.A.A.F. 1995); United States v. Giles, 51 M.J. 583 (N.M.C.C.A. 1999)

M. Miscellaneous.  See, e.g., United States v. Stubbs, 23 M.J. 188.  Defense moved to recuse entire prosecution office because of prior contact between one prosecutor and accused on a legal assistance matter.

N. Motion in limine (R.C.M. 906(b)(13)).

1. Definition.  A preliminary ruling on the admissibility of evidence made outside the presence of members.

2. Procedure.  Government or defense may make a motion in limine.

3. Rulings.  The decision when to rule on a motion in limine is left to the discretion of the military judge.  R.C.M. 906(b)(13) discussion.  Judicial economy and judicial accuracy constitute “good cause” which, under R.C.M. 905(d), allows a military judge to defer ruling on an in limine motion until presentation of the merits.

a. See, e.g., United States v. Helweg, 32 M.J. 129 (C.M.A. 1991) (separate litigation of motion would have replicated large segments of a trial on the merits and in the judge-alone format; the judge is not required to hear the case twice).

b. See also United States v. Cannon, 33 M.J. 376 (C.M.A. 1991) (it is appropriate to defer ruling on the admissibility of evidence until such time as it becomes an issue).

4. Common uses of a motion in limine.

a. Admissibility of uncharged misconduct.  See, e.g., United States v. Thompson, 30 M.J. 99 (C.M.A. 1990).  Defense moved in limine to suppress a sworn statement accused made one year before charged offenses wherein accused admitted to bad checks, extramarital affair and financial problems.  Trial counsel intended to use statement as evidence of scheme or plan under M.R.E. 404(b).

b. Motions to keep out M.R.E. 413/414 evidence should be made in limine. 

c. Admissibility of prior conviction for impeachment.

d. Admissibility of impeachment evidence as to credibility. 

e. Admissibility of witness’s out-of-court statements.

f. Admissibility of a victim’s sexual behavior or predisposition under M.R.E. 412(b).

g. Motions to suppress evidence other than confessions, seizures, or identifications.   See R.C.M. 905(b)(3) discussion.

h. Preemptive strike by the government to exclude anticipated favorable defense evidence.  Examples:

(1) United States v. Huet-Vaughn, 43 M.J. 105 (1995).  The Government made 2 motions in limine and prevented the accused, an Army physician, from presenting evidence of motives and reasons for refusing to support Desert Shield and views on unlawfulness of the war on charge of desertion with intent to avoid hazardous duty.

(2) United States v. West, 27 M.J. 223 (C.M.A. 1988).  The Government’s motion in limine limited the defendant’s testimony on his request for a polygraph and for sodium pentothal.

(3) United States v. Rivera, 24 M.J. 156 (C.M.A. 1987).  Defense failure to make an offer of proof does not constitute appellate waiver where Government makes a preemptive strike to exclude evidence and evidentiary issue is apparent from the record.

i. Preservation for appellate review of issue raised by motion in limine.

(1) The accused must testify to preserve review of a denied motion in limine on the admissibility of accused’s prior conviction.  United States v. Sutton, 31 M.J. 11, 21 (C.M.A. 1990).  This holding reverses prior military practice and adopts the U.S. Supreme Court ruling in Luce v. United States, 469 U.S. 38 (1984).  See also United States v. Gee, 39 M.J. 311 (C.M.A. 1994) (character testimony) and United States v. Williams, 43 M.J. 348 (1995).

(2) United States v. Sheridan, 43 M.J. 682 (A.F. Ct. Crim. App. 1995).  Counsel do not have to repeat objections during trial if they first obtain unconditional, unfavorable rulings from the military judge in out-of-court sessions.  See M.R.E. 103(a)(2); R.C.M. 801(e)(1)(A) (finality of ruling); R.C.M. 906(b)(13).  However, a preliminary, tentative ruling may require a subsequent objection to preserve issue for appeal. United States v. Jones, 43 M.J. 708 (A.F. Ct. Crim. App. 1995).

5. Time.  Rulings are generally made at the earliest possible time unless the military judge, for good cause, defers ruling until later in the trial. Written motions may be disposed of before arraignment and without an Article 39(a) session.  A party may request oral argument or an evidentiary hearing concerning disposition of the motion.  R.C.M. 905(h).

6. Essential findings.  R.C.M. 905(d).  Where factual issues are involved, the military judge shall state essential findings on the record.

7. Reconsideration.  R.C.M. 905(f).  The military judge on his or her own, or at the request of either party, may reconsider any ruling not amounting to a finding of not guilty any time before authentication of the record.  Read in conjunction with R.C.M. 917(f).  Motion for a Finding of Not Guilty.  Reconsideration of a granted motion for a finding of not guilty is not permitted.

IV. Motions To Suppress

A. General.  A motion to suppress is based on an alleged constitutional violation.

B. Procedure.  M.R.E. 304(d) [pretrial statements], 311(d) [search & seizure], 321(c) [eyewitness identification].

1. Disclosure by the Government.

2. Notice of motion by defense.

3. Specific grounds for objection.

a. United States v. Miller, 31 M.J. 247 (C.M.A. 1990).  Motion to suppress statement under M.R.E. 304(d)(2)(A)  (now M.R.E. 304(f)) must be made prior to plea.  Absent motion, no burden on prosecution to prove admissibility; no requirement for specific findings by MJ; and, no duty to conduct a voluntariness hearing.

b. United States v. Vaughters, 42 M.J. 564 (A.F. Ct. Crim. App. 1995), aff’d, 44 M.J. 377 (C.A.A.F. 1996).  Accused challenged admissibility solely on technical Edwards violations.  On appeal, asserts AFOSI also coerced confession by threatening to tell neighbors and alleged drug dealers that he had informed on them.  As motion to suppress did not raise coercion issue, court held accused had forfeited or “waived” issue on appeal.

4. Burden on the prosecution by preponderance.  If the underlying facts involve an alleged subterfuge inspection, the standard is higher for the government.   Under M.R.E. 313(b), the burden is clear and convincing if the purpose of the inspection is to discover contraband and is directed immediately following report of specific offense, specific individuals are selected, or persons examined are subject to substantially different intrusions; if none of the three factors are present, the burden remains by preponderance).  See United States v. Shover, 45 M.J. 119 (C.A.A.F. 1996) (finding clear and convincing standard met by the government).

5. Essential findings of fact, prior to plea.

6. Guilty plea waives, except conditional guilty plea.

V. Motions To Dismiss.  R.C.M. 907

A. General.  A motion to dismiss is a request that the trial judge terminate the proceedings as to those charges and specifications without a trial on the merits.

B. Nonwaivable Grounds.  Can be raised anytime, including appellate review.

1. Lack of Jurisdiction.

2. Failure to Allege an Offense.

3. Unlawful Command Influence.

4. Improperly Convened Court.

C. Waivable Grounds.  Must be raised before final adjournment of trial.

1. Speedy Trial.  But see Mizgala, 61 M.J. at 127 (stating that court will not apply forfeiture of Article 10 issues).

2. Statute of Limitations. See Article 43.

a. Unlimited - capital offenses, AWOL in time of war.

b. Five years - all other offenses.

c. Child Abuse offenses – life of child, or within five years of date crime committed, whichever is longer

d. Two years - Article 15 nonjudicial punishment.

3. Former Jeopardy.

a. See United States v. Burns, 29 F.Supp.2d 318 (E.D.Va. 1998)(analyzing Hudson v. United States, 522 U.S. 93, to conclude that Article 15, UCMJ punishment does not raise double jeopardy concerns because punishment is administrative and not punitive in nature).

4. Presidential Pardon.

5. Grant of Immunity.

6. Constructive Condonation of Desertion.

7. Prior Article 15 Punishment for same, minor offense.  United States v. Pierce, 27 M.J. 367 (C.M.A. 1989).  Prior Article 15 punishment for serious offense does not bar subsequent trial for same offense, but the accused must be given complete sentence credit for any punishment resulting from the Article 15 proceeding. United States v. Edwards, 42 M.J. 381 (C.A.A.F. 1995).  The military judge may apply the required credit in fashioning a sentence. 

D. Permissible Grounds.  May be dismissed upon timely motion by the accused.

1. Misleading Specification.

2. Multiplicity.

E. Other Grounds.

1. Vindictive or Selective Prosecution.

2. Constitutional Challenges.

a. Equal protection.

b. First Amendment.

c. Privacy rights.  Unger v. Ziemniak, 27 M.J. 349 (C.M.A. 1989).  Direct observation of urine collection during urinalysis is not per se an unreasonable invasion of privacy.

d. Lack of notice.

e. Ex post facto laws.

VI. Mistrial.  R.C.M. 915

A. General

1. A drastic remedy.  The judge should declare a mistrial only when “manifestly necessary in the interest of justice” due to circumstances which “cast substantial doubt upon the fairness or impartiality of the trial.”  United States v. Waldron, 36 C.M.R. 126, 129 (C.M.A. 1966).  United States v. Brooks, 42 M.J. 484 (1995) (MJ should not have declared mistrial based on his improper inquiry into members’ deliberative process).

a. See, e.g., United States v. King, 32 M.J. 709 (1991) (A.C.M.R. 1991), rev’d on other grounds, 35 M.J. 337 (C.M.A. 1992).   Mistrial not required even though trial counsel improperly communicated to civilian psychologist who was defense representative.  Factors considered by the court: the psychologist would have eventually asked for the background information provided by the trial counsel; any advantage to the trial counsel from the information was minimal; and there was no bad faith on the part of the trial counsel.

b. But see United States v. Diaz, 59 M.J. 79 (C.A.A.F. 2003), in which the CAAF held that a military judge abused his discretion in denying a motion for a mistrial when two witnesses --one of them an expert -- testified they believed death of appellant’s daughter was a homicide and appellant was the perpetrator.  The combined prejudicial impact of the testimony could not be overcome by a curative instruction, particularly since the testimony went to the two main issues of the case:  the cause of the death and the identity of the perpetrator.

2. Effect.  A declaration of a mistrial shall have the effect of withdrawing the affected charges and specifications from the court-martial.

3. First consider alternative measures.

a. United States v. Balagna, 33 M.J. 54 (C.M.A. 1991). Witness testimony before panel included reference to accused’s submission of Chapter 10 request.  The MJ gave curative instruction immediately.  Defense motion for mistrial was denied.  MJ gave second curative instruction during findings. Held no error to deny motion for mistrial.

b. United States v. Taylor, 53 M.J. 195 (C.A.A.F. 2000).  Military Judge did not abuse his discretion in denying a defense request for mistrial where trial counsel made several impermissible references to accused’s gang affiliation in his opening statement.  Curative instruction to members was sufficient, in spite of the fact that during the trial several members asked questions about the accused’s gang affiliation. 

c. United States v. Mobley, 34 M.J. 527 (1991) (A.F.C.M.R. 1991), aff’d, 36 M.J. 34 (C.M.A. 1992).  Instructions advising members of accused’s right to remain silent; that they could not draw any adverse inference from accused’s failure to testify; and, that trial counsel’s exposition of the facts was argument and not evidence ameliorated any prejudice caused by trial counsel’s comments during closing argument that called attention to the accused’s failure to testify.

d. United States v. Skerrett, 40 M.J. 331 (C.M.A. 1994)(no mistrial warranted where MJ admonished panel twice to disregard testimony concerning dismissed specification and each member individually assured MJ that excluded testimony would not influence consideration of remaining specifications.

4. Government can usually re-refer charges.  See United States v. Mora, 26 M.J. 122 (C.M.A. 1988) (upholding new referral after a mistrial in a military judge alone case).

B. Retrial barred if mistrial declared after jeopardy attaches and before findings under R.C.M. 915(c)(2) if:

1. Defense objects and judge abuses discretion.  Burtt v. Schick, 23 M.J. 140 (C.M.A. 1986).  Trial counsel requested mistrial when defense divulged accomplice’s sentence.  Granted over defense objection; abuse of discretion, double jeopardy barred retrial.

-- OR --

2. Intentional prosecution misconduct induces mistrial.  United States v. Diangelo, 31 M.J. 135 (C.M.A. 1990).  Trial counsel’s cross examination of accused elicited juvenile arrest record. Fact of arrest record had not previously been disclosed to defense despite discovery request.  Trial court granted mistrial.  CMA holds that conduct of trial counsel did not amount to prosecutorial misconduct and therefore, under R.C.M. 915(c)(2)(B), retrial of the accused was not barred.

C. Defense Motion for Mistrial.  Examples of grounds raised in motions for mistrial:

1. Court members’ actions.

a. United States v. Johnson, 23 M.J. 327 (C.M.A. 1987).  Two motions for mistrial based on a member inadvertently seeing autopsy photos and a Government witness riding with a member.

b. United States v. West, 27 M.J. 223.  A motion for a mistrial based on an inattentive or sleeping court member.

c. United States v. Knight, 41 M.J. 867 (A. Ct. Crim. App. 1995) (extensive, frequent and member initiated communications with third party intended to gain improper and extrajudicial information relevant to key issues in case warranted mistrial).

d. United States v. Hamilton, 41 M.J. 22 (C.M.A. 1994) (mistrial not required by trial counsel’s inadvertent, but improper, social conversation with president of court where no information regarding accused’s case was discussed and president was removed for cause).

2. Military judge’s actions.

a. Contempt.  United States v. Burnett, 27 M.J. 99 (C.M.A. 1988)(mistrial should have been granted where military judge asked the members to find the defense counsel in contempt, and they did so; even the threat to hold a defense counsel in contempt poses a “substantial risk of prejudice to the appellant, where members are aware of the threat)  But see United States v. Warnock, 34 M.J. 567 (A.C.M.R. 1991) (threat to hold defense counsel in contempt which was made in front of the panel did not prejudice the accused where the judge was equally hard on both sides, the defense counsel had repeatedly ignored the judge, and the evidence of guilt was overwhelming; motion for mistrial was correctly denied).

b. United States v. Donley, 33 M.J. 44 (C.M.A. 1991).  Military judge did not err when he failed, sua sponte, to declare a mistrial over a defense objection.  During general court-martial for premeditated murder of accused’s wife the president of court-martial over-heard sidebar conference during which military judge and counsel discussed inadmissible hearsay.  Military judge offered to declare a mistrial but defense counsel objected.

c. Noncompliance with discovery rules.  United States v. Palumbo, 27 M.J. 565 (1988) (A.C.M.R. 1988), pet. denied, 28 M.J. 265 (C.M.A. 1989).  Mistrial not necessary as trial judge gave proper curative instructions after the trial counsel elicited statements made by the accused which were not disclosed to the defense before trial and also elicited testimony that the accused had invoked his rights.

VII. Motions For Finding Of Not Guilty.  R.C.M. 917

A. Procedure.

1. Sua sponte or defense motion.

2. Defense must specifically state where evidence is insufficient.

3. Opposing counsel shall be given an opportunity to be heard.

4. After the evidence on either side is closed and before findings are announced.

B. Standard.

1. Deny motion if there is any evidence which, together with all reasonable inferences and presumptions, could reasonably tend to establish every element of the offense.

2. The evidence shall be viewed in the light most favorable to the prosecution, without an evaluation of the credibility of witnesses.  See, e.g., United States v. Felix, 25 M.J. 509 (1987) (A.F.C.M.R. 1987).  Allegations of deviation from standard operating procedure at a drug-testing lab.  Trial judge did not abuse his discretion when he denied the defense motion for a finding of not guilty.

3. Grant motion if the government has introduced no evidence at all of an offense occurring during the charged dates of the offense.  In United States v. Parker, 59 M.J. 195 (C.A.A.F. 2003), the Government charged the accused with raping a woman in 1995.  At trial, the woman testified that the rape had actually occurred in 1993.  The Government unsuccessfully moved to amend the charge, but persuaded the military judge give a variance instruction that would permit the members to substitute 1993 for 1995.  The CAAF held the military judge erred in denying the defense’s R.C.M. 917 motion for the 1995 rape offense; the Government had introduced no evidence of any sexual interaction between the accused and the victim in 1995.

C. Effect.

1. If motion is granted only as to part of a specification, a lesser included offense may remain.

2. If motion is denied, it may be reconsidered at any time before authentication of the Record of Trial.  R.C.M. 917(f).   See also United States v. Griffith, 27 M.J. 42 (C.M.A. 1988).  Trial judge stated he had no power to set aside findings of guilty by court members.  (He had previously denied a motion for a finding of not guilty due to the lower standard for such motions.)  HELD:  “We are convinced that, if before authenticating the record of trial, a military judge becomes aware of an error which has prejudiced the rights of the accused—whether this error involves jury misconduct, misleading instructions, or insufficient evidence—he may take remedial action.”  Id. at 47.

3. If motion is granted, it may not be reconsidered.

VIII. Post-Trial Sessions. R.C.M. 1104

A. Purpose.  To inquire into, and, when appropriate, to resolve any matter that arises after trial that substantially affects the legal sufficiency of any findings of guilty or the sentence.

B. Hearing.  Article 39(a) session or proceeding in revision directed by the military judge or the convening authority. Upon motion of either pary or sua sponte, the military judge may direct a post-trial Article 39(a) session at any time before the entry of judgment under R.C.M. 1111 and, when necessary, after a case has been returned to the military judge by a higher court.  Counsel for the accused shall be present in accordance with R.C.M. 804 and R.C.M. 805.

C. Time.  Post-trial motions shall be filed no later than 14 days after defense counsel receives the Statement of Trial Results.  The military judge may extend the time to submit such matters by not more than an additional 30 days for good cause.  R.C.M. 1104(b)(2)(A).  A motion to correct an error in the action of the convening authority shall be filed within five days after the party receives the convening authority’s action.  R.C.M. 1104(b)(2)(B).  A motion to correct a clerical or computational error in a judgment entered by the military judge shall be made within five days after a party is provided a copy of the judgment.  R.C.M. 1104(b)(2)(C). .

D. Grounds

1. Investigate alleged court member misconduct.  United States v. Stone, 26 M.J. 401 (C.M.A. 1988).  Post-trial allegations by appellant’s father concerning laughter and festive atmosphere within the deliberation room and an improper comment by a court-member made during a recess.  A post-trial hearing was not required in this case, but court indicates that it is an appropriate mechanism in such cases.

2. Change plea when alleged cocaine was actually caffeine.  United States v. Washington, 23 M.J. 679 (1986) (A.C.M.R. 1986), review denied, 25 M.J. 197 (C.M.A. 1987).  A post-trial session was appropriate.

3. Lost tapes of the announcement of findings and sentencing proceedings.  United States v. Crowell, 21 M.J. 760 (1985) (N.M.C.M.R. 1985), review denied, 23 M.J. 281 (C.M.A. 1986).  A post-trial session, before authentication of the record, was appropriate to recreate lost verbatim tapes.

4. Newly discovered evidence. 

a. United States v. Scaff, 29 M.J. 60 (C.M.A. 1989).  “Article permitting MJ to call court into session without presence of members at any time after referral of charges to court-martial empowers judge to convene post-trial session to consider newly discovered evidence and to take whatever remedial action is appropriate.”  Until he authenticates the record, the MJ can set aside the findings of guilt and sentence.  If the convening authority disagrees with the MJ, the only remedy is to direct trial counsel to move for reconsideration or to initiate government appeal.  See United States v. Meghdadi, 60 M.J. 438 (C.A.A.F. 2005) (military judge abused his discretion in denying appellant’s motion for a post-trial 39(a) session to inquiry into newly discovered evidence and fraud on the court). 

b. United States v. Fisiorek, 43 M.J. 244 (MJ applied incorrect legal standard in denying accused opportunity to reopen case to present newly discovered evidence).

IX. Motions Waiver Checklist

MOTION

HOW WAIVED

Suppression of Confession or Admission.

1. Failure to raise before submission of plea [after proper disclosure by trial counsel under M.R.E. 304(d)], except for good cause shown, as permitted by the military judge.  M.R.E. 304(f)(1)].

2. Plea of guilty regardless of whether the motion was raised prior to plea, unless conditional plea.  M.R.E. 304(f)(8).

3.  When a specific motion or objection has been made, the burden on the prosecution extends only to the grounds upon which the defense moved to suppress the evidence.  M.R.E. 304(f)(6).

Suppression of evidence seized from the accused
or believed owned by the accused.

1. Failure to raise before submission of plea [after proper disclosure by trial counsel under M.R.E. 311(d)(1)], except for good cause shown, as permitted by the military judge.  M.R.E. 311(d)(2)(a).

2. Plea of guilty, regardless of whether the motion was raised prior to plea.  M.R.E. 311(e).

3.  When a specific motion or objection has been made, the burden on the prosecution extends only to grounds upon which the defense moved to suppress.  M.R.E. 311(d)(5)(C).

Suppression of Eyewitness ID.

1. Failure to raise before submission of plea [after proper disclosure by trial counsel under M.R.E. 321(d)(1)], except for good cause shown, as permitted by the military judge.  M.R.E. 321(d)(2).

2. Plea of guilty, regardless of whether raised prior to plea.  M.R.E. 321(e).

3.   When a specific motion or objection has been made, the burden on the prosecution extends only to grounds upon which the defense moved to suppress.  M.R.E. 321(d)(6).

Defects (other than jurisdiction) in preferral, forwarding, investigation, or referral of charges.

Failure to raise before plea is entered.  R.C.M. 905(b)(1).

Motions for discovery (R.C.M. 701), or for production of witnesses or evidence.

Failure to raise before plea is entered.  R.C.M. 905(b)(4).

Defects in Charges or Specs (other than juris. or stating offense).

Failure to raise before plea is entered.  R.C.M. 905(b)(2).

 

Motions for severance of charges or accused.

Failure to raise before plea is entered.  R.C.M. 905(b)(5).

 

Objections to denial of IMC request or for retention of detailed counsel when IMC granted.

Failure to raise before plea is entered.  R.C.M. 905(b)(6).

 

Lack of jurisdiction over accused.

Not Waivable.  R.C.M. 907(b)(1).

Command Influence

 

Generally Not Waivable.  But see United States v. Weasler, 43 M.J. 15.  (Defense initiated waiver of UCI in accusatory phase for favorable PTA is permissible), and United States v. Drayton, 45 M.J. 180 (1996)(Failure to raise accusatory UCI constitutes waiver)

Failure to State Offense

Waivable.  R.C.M. 907(b)(2)(E).

Improperly Convened CM (Incorrect Member Subst.)

Not Waivable. 

 

Speedy Trial

1.   Waived if not raised before final adjournment.   R.C.M. 907(b)(2)(A), and 905(e).

2.   Plea of guilty, except as provided in R.C.M. 910(a)(2).  R.C.M.         707(e); note:  Article 10 issues not waived by GP.

Statute of Limitations

 

Waived if not raised before final adjournment, provided it appears that the accused is aware of his right to assert the statute, otherwise the judge must inform the accused of the right.  R.C.M. 907(b)(2)(B).

Use of Victims Past Sexual Behavior or Predisposition.

Failure to file written motion 5 days before trial.  M.R.E. 412(c)(1)(A).

Former Jeopardy

Waived if not raised before final adjournment of the court.  R.C.M .907(b)(2)(C).

Pardon, grant of immunity, condonation of desertion or prior punishment under Articles 13 & 15.

Waived if not raised before final adjournment of the court.  R.C.M. 907(b)(2)(D).

NOTE:  R.C.M. 910(j) provides that [except for a conditional guilty plea under R.C.M. 910(a)(2)] a plea of guilty which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offenses to which the plea was made.

R.C.M. 910(a)(2) provides that, with the approval of the military judge and the consent of the government, an accused may enter a conditional plea of guilty, reserving in writing the right, on further review or appeal, to review the adverse determination of any specified pretrial motion.  

 

X. Special Victim Counsel (SVC) Program Impact

A. Pursuant to LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013), a victim of sexual assault has a right to be heard through counsel on issues implicating M.R.E. 412 (rape shield), M.R.E. 513 (psychiatrist - patient privilege), and M.R.E. 514 (victim advocate – victim privilege).  The right to be heard necessarily involves access to court documents and legal and factual presentation relevant to the issues.

B. Rule 2.3.1 of the Rules of Practice Before Army Courts-Martial.  All parties will serve the SVC with copies of motions and responses, as well as any accompanying documents which touch on the interest of the victim.

C. Filing of motions by Special Victim Counsel.  An SVC, who has been identified on an Electronic Docket Request or has filed a notice of appearance may be heard before the court to the extent allowed by applicable law and subject to rulings and direction of the military judge.  An SVC may file such motions and other pleadings with the court as deemed necessary to protect the interests of the client.  Copies of all SVC filings will be served on all counsel participating in the case.  Filings by the SVC should comply with the format and deadlines established by the military judge for the parties to the extent practicable.  When filing a motion on behalf of a minor client, the SVC shall identify the client by initials in any pleadings with the court.

D. Limitation of Appellate Standing.  Randolph v. HV, 76 M.J. 27 (C.A.A.F. 2017)(finding that amendments to Articles limited victim standing for enforcement of Article 6b to the service courts; CAAF did not have jurisdiction to hear)

 

XI. Getting Better By Reading:

A. Lieutenant Colonel Patricia A. Ham, Making the Appellate Record: A Trial Defense Attorney’s Guide to Preserving Objections – the Why and How, Army Law., Mar. 2003, at 10.

B. James McElhaney, Dirty Dozen: Do You Want to Write a Really Bad Brief?  Here Are 12 Ways to Do It, ABA J., June 2011, at 24.

C. James McElhaney, Listen to What You Write, ABA J., Jan. 2011, at 20.

D. James McElhaney, Style Matters, ABA J., June 2008, at 28.

E. James McElhaney, Telling It to the Judge, ABA J., Nov. 2006, at 22.

F. James McElhaney, Story Line, ABA J., Apr. 2006, at 26.

 

 

APPENDIX

MOTION SHELL

 

UNITED STATES OF AMERICA

)

 

 

)

(Prosecution)(Defense)

        v.

)

Motion for Appropriate Relief:

 

)

 

(Last Name), (First Name) (MI)

)

Date

(Rank), U.S. Army,

(BN), (BDE)

)

)

 

10th Mountain Division (Light Infantry)

)

 

Fort Drum, New York 13603

)

 

 

)

 

______________________________________________________________________________

 

RELIEF SOUGHT

 

            The (Prosecution)(Defense) requests that the Court (do what) because (briefly state the reason).

 

            The (Prosecution)(Defense) (does)(does not) request oral argument.

 

BURDEN OF PROOF AND STANDARD OF PROOF

 

            The moving party has the burden of proof on any factual issue.  R.C.M. 905(c)(2).  The standard of proof on any factual issue is preponderance of the evidence.  R.C.M. 905(c)(1). 

(A short statement should work for most motions.  If the motion is from M.R.E. Section III, see the particular rule – generally, the government will have the burden and may have a higher standard.  See also R.C.M. 905(c)(2)(B) for other occasions where the government has the burden).

 

FACTS

(It may be wise to complete this section last.  Include the facts required to support the argument, determinative facts, and include other facts only if they are required for the judge to make sense of the determinative facts or if they affect witness credibility, bias, etc.  After you write the argument section, you should be able to use that part of the motion to present the facts into a chronological narrative.  It often helps both parties to agree to undisputed facts – it helps focus the motion hearing and the issues.  When there are undisputed facts, include this language in the motion:  “The Prosecution and Defense, with the express consent of the accused, agree to stipulate to the following facts for the purposes of this motion.”)

 

WITNESSES / EVIDENCE

(Include witnesses or evidence that will support every fact that you have raised.  The Defense almost always has the burden, so you have to prove the facts – the government may have to produce the witnesses, but you have to prove the facts.) 

 

LEGAL AUTHORITY AND ARGUMENT

(Use the “IRAC” formula.  If you have multiple arguments, do an IRAC for each, and use a separate header for each.  Go ahead and use “Law”, “Fact Analysis” and “Conclusion” as your headers.)

 

1.  Article 10 Violation.

 

            a.  The issue is whether XXX.

           

            b.  Law.  The test under Article 10, UCMJ, is whether the government proceeded with reasonable diligence in bringing the case to trial.  United States v. Bell, 38 M.J. 358 (C.M.A. 1993).  Stated in the inverse, the government cannot negligently fail to bring charges.  Id.  The remedy for an Article 10 violation is dismissal of all charges with prejudice.  Kossman, at 262.  The standard of review on appeal is de novo.  United States v. Cooper, 58 M.J. 54 (2003).  Article 10 analysis should include the Barker v. Wingo factors (United States v. Birge, 52 M.J. 209 (1999)), but is not limited to those factors because Article 10 is more exacting than standard Sixth Amendment analysis (United States v. Mizgala, 61 M.J. 217 (2005)). 

(Use simple statements of the law followed by a case cite.  Generally, the law is not in dispute, and the judge knows the law.  If the law is unclear or is in dispute, you may make a more detailed argument.)

           

            c.  Fact analysis.  Barker v. Wingo Factors.  Many of the factors named above which serve to demonstrate an Article 10 violation are present in the facts of this case.

 (State the facts that support your proposition, and explain why the facts support your proposition.  State the inferences that the judge needs to make.  Tell him why these facts matter.  After you have written your argument, you will know the determinative facts.  Those are the facts you put in the statement of facts, above.)   

                        1.  Length of delays.

                        2.  Reason for the delay. 

 

            d.  Conclusion.  (State your position on the issue). 

 

2.  Unlawful Command Influence.

            a.  The issue is XXX.

            b.  Law.

            c.  Fact Analysis.

            d.  Conclusion.

           

CONCLUSION

 

            (Restate the relief requested paragraph here.)  

 

 

 

 

                                                                              SIGNATURE BLOCK

                                                                              CPT, JA

                                                                              Defense Counsel

 

 

            (Note:  No certificate of service is required.)

 

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