MOTIONS PRACTICE

A motion is a request from either party for the court to grant a particular order or request for relief. The Rules for Courts-Martial guide the form and types of motions that may be submitted.

Below is a checklist of common motions in the military:

Checklist

INDEX

DISCOVERY and INFORMATION
M forin Camera Review
M to Compel Discovery RCM 701
M for Expert (or Investigative) Assistance RCM 703
M for Deposition - RCM 702(c)(3)(A).
M for Mental Health Exam of Sexual Assault Victim

MOTIONS IN LIMINE

M to Suppress Confession (Insufficient Rights Warning) MRE 304, 305
M to Suppress Confession (Not Afforded Chance to See Counsel)
M to Suppress Confession (Involuntary under the Circumstances) – MRE 305(a).
M to Suppress Confession (Lack of Corroboration) - MRE 304(g)).
M to Suppress Evidence – Lack of Probable Cause to Search – MRE 311, 315e
M to Suppress Confession – Illegal Wiretap – 18 USC, Secs. 2510-2520
M in Limine, Other Crimes, Wrongs, or Acts – MRE 404(b)
M to Admit MRE 412
M Opposing MRE 413 Evidence
M to Suppress Bank Records - The Right To Financial Privacy Act, 12 USC 3401-3422
M in Limine – Improper Opinion Evidence
M in Limine 608(b) Impeachment
M Limine 1001(b)(5) Evidence

ATTACKS AGAINST THE PROSECUTION

M for Appropriate Relief, Unlawful Command Influence – Article 37, UCMJ
M to Dismiss for Prosecutorial Misconduct
M to Dismiss for Violation of Article 10
M for New Article 32 Investigation – Failure to Produce Necessary Witness – RCM 405(g)
M for New Article 32 Investigation – Improper Ex-Parte Contacts
M to Disqualify Panel Members
M to Challenge Panel Member – Actual or Implied Bias

ATTACKS AGAINST THE CHARGES AND SPECIFICATIONS

M for Bill of Particulars – RCM 906(b)(6)
M to Dismiss, Failure to State an Offense – RCM 603.
M to Dismiss – No Contact Order
M to Dimiss – No Drinking Order
M to Dismiss – Order to Perform Routine Duties
M to Dismiss for Multiplicity
M to Dismiss for Unreasonable Multiplication of Charges -- See Discussion to R.C.M. 307(c)(4),
M to Dismiss – SOFA Double Jeopardy – Article XXII, Para. 8 of the US-ROK SOFA
M to Consolidate Specifications - Larceny

SENTENCE CREDIT

M for Sentence Credit – Pretrial confinement
M for Sentence Credit – Restriction Tantamount to Confinement
M for Sentence Credit – Restriction in violation of Article 13
M for Sentence Credit – Article 13 (humiliation of AC) - Article 13, UCMJ
M for Sentence Credit - RCM 305(k)
M for Sentence Credit – Prior Article 15

DISCOVERY and INFORMATION

M for in Camera Review – A good one for sex cases and usually a winner. Where Df gives a specific possibility that medical / mental / school (what else can you think of?) records contain exculpatory information, “[t]he preferred practice is for the military judge to inspect the medical records in camera to determine whether any exculpatory evidence was contained in the file prior to any government or defense access. . . . The proper procedure is for trial counsel to call the records custodian as an authenticating witness. This witness need only deliver an accurate and sealed copy of the records to the military judge for in camera review. Once reviewed, the military judge makes a ruling either allowing access to both sides, or denying access and resealing the records as an exhibit for appellate review. “ In United States v. Briggs, 48 M.J. 143 (1998). A huge pain for the TC if some of the records are in CONUS.

M to Compel Discovery -- Article 46 says that the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the president may prescribe. RCM 701(a)(2). Pursuant to RCM 701(g)(1), the Military Judge may specify the time, place, and manner of making discovery and may prescribe such terms and conditions as are just. In United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999), the Court held that the Trial Counsel must disclose “core files,” to include the prosecution's files in the case at bar. The prosecution also has "a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." United States v. Simmons, 38 M.J. 376 (C.M.A. 1983). IAW Simmons, records of another military agency involved in the investigation of the accused may be discoverable, and a Trial Counsel "must exercise due diligence" in reviewing the files of other government entities to determine whether such files contain discoverable information. To the extent that relevant files are known to be under the control of another governmental entity, the prosecution must make that fact known to the defense and engage in good faith efforts to obtain the material. United States v. Figueroa, 55 M.J. 525 (C.A.A.F. 2001) restated the above and noted that the existence of good or bad faith on the part of the Trial Counsel did not affect his or her duty to take steps to collect and supplement discoverable information.

M for Expert (or Investigative) Assistance –

• Psychiatrist
• Investigator
• Interpreter
• Finance expert
• Toxicologist (alc)
• Rape kit doctor

As a confidential member of the defense team. “As a matter of military due process, service members are entitled to investigative or other expert assistance when necessary for an adequate defense, without regard to indigency.” United States v. Garries, 22 M.J. 288 (C.M.A. 1986); United States v. Mustafa, 22 M.J. 165 (C.M.A. 1986); United States v. Toledo, 15 M.J. 255 (C.M.A. 1983). In order to show necessity, the defense must demonstrate three things: (1) the reason for the assistance; (2) the goal the assistance is expected to accomplish; and (3) the reason the defense is unable to gather the evidence without assistance. To demonstrate the necessity for an investigator, the defense must make a plausible showing that the investigator could obtain information that the defense would not be able to obtain on its own. United States v. Washington, 46 M.J. 477 (C.M.A. 1997). In a recent case, a Court found IAC when a DC let his client talk to a shrink who was not a confidential member of the defense team. Ask the Convening Authority first IAW RCM 703 before making a motion for any kind of expert assistance! If you are introducing scientific evidence, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).

M for Deposition - RCM 702(c)(3)(A). A request for deposition should only be denied for good cause. The discussion to the rule illustrates examples of good cause. These include the failure to state a proper ground for taking a deposition, failure to show the probable relevance of the witness’ testimony, or that the witness’ testimony would be unnecessary. The availability of a witness for trial is generally good grounds for denial unless unusual circumstances exist. Examples listed include improper denial of a witness request at an Article 32 investigation and unavailability of an essential witness at an Article 32 investigation

M for Mental Health Examination of Sexual Assault Victim - United States v. Owen, 24 M.J. 390 (C.M.A. 1987) was a case where the Df failed to show that the victim had any mental health problems. The issue was raised on appeal, where the Court held that while a MJ does not have the power to order an involuntary mental health examination of an alleged sexual assault victim, but does have means at his disposal to protect the rights of the accused in the appropriate case:
l persuade victim to agree to the examination.
l give Df enough documentary evidence to provide a sufficient basis for an expert to draw the necessary conclusions.
l in extreme cases, the MJ could strike the witness' testimony, particularly where there is absolutely nothing to corroborate the allegations.”

MOTIONS IN LIMINE

M to Suppress Confession (Insufficient Rights Warning) –

• MRE 304(a): involuntary confessions and evidence derived therefrom may not be received in evidence against an accused where timely objection is made to the use of the evidence.
• MRE 304(c): A “confession” is “an acknowledgment of guilt” and “involuntary” if obtained in violation of the Constitution or Article 31.
• MRE 305(c): A person subject to the Code must first provide certain warnings before questioning a person suspected of an offense, as per Article 31(b), UCMJ, 10 USC § 831(b).

The warnings need not be technically precise or complete – they only need to warn the accused of the general nature of the allegations. United States v. Rogers, 47 M.J. 135 (C.A.A.F. 1997); United States v. Napoleon, 46 M.J. 279, 285 (1997) (Advising accused that she was suspected of “stabbing” the victim was sufficient warning for confession to murder); but see United States v. Huelsman, 27 M.J. 511, 513 (A.C.M.R. 1988) (rights waiver for bad check offenses won’t be enough for a drug confession). See also United States v. Simpson, 54 M.J. 281 (C.A.A.F. 2000).

M to Suppress Confession (Not Afforded Chance to See Counsel) – Where AC is questioned, asks for a lawyer, is approached and questioned again later, and makes a statement. The law: If the prosecution can demonstrate by a preponderance of the evidence that the accused or suspect had not continuously had his or her freedom restricted by confinement, or other means, during the period between the request for counsel and the subsequent waiver, then the suspect's subsequent waiver of the right to counsel may be deemed valid. Mil. R. Evid. 305(g)(2)(B)(ii), Manual for Courts-Martial. Such a break in custody cannot be contrived or pretextual. Moreover, case law dictates that the accused must have a "reasonable" or "real" opportunity to seek counsel during the break in custody. Edwards v. Arizona, 451 U.S. 477 (1981); Minnick v. Mississippi, 498 U.S. 146 (1990) (held that Edwards did not create a “bright line” after client asked for counsel); United States v. Mosley, 52 M.J. 679 (ACCA 2000); United States v. Grooters, 35 M.J. 659 (ACMR 1992); United States v. Granda, 29 M.J. 771 (ACMR 1989)

M to Suppress Confession (Involuntary under the Circumstances) – MRE 305(a). United States v. Martinez, 38 M.J. 82, 84 (CMA 1993); United States v. Bubonics, 45 M.J. 93 (CAAF 1996); Schnekloth v. Bustamonte, 412 U.S. 218 (1973). Things you should ask about:

• How long was the client held in the place of interrogation? How big was the room, did it have ventilation, heat and A/C?
• Did he get ample breaks, smoke breaks, access to food and water?
• Did he ask for a lawyer or suggest that maybe he should talk to one?
• Did he waive his rights? Is there a signed waiver? Did he sign a statement? If not, why not?
• Did the CID agents yell at or lie to him? Did they talk max punishments or promise certain dispositions?
• Was there a poly? What did the polygrapher tell him?
• What psychological pressure or tactics were used; ie., did they do the good cop / bad cop thing?
• How old / smart is your client? How much military training and experience does he have? Any mental issues?
• What if any physical, moral, or psychological restraint was there (ie handcuffs, told he can’t leave till he talks)?

M to Suppress Evidence – Lack of Probable Cause to Search –

• Rule 315(f): Probable cause to search exists when there is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be search. A search authorization may be based upon hearsay evidence in whole or in part.
• Rule 311(e): When an appropriate motion or objection has been made by the defense under subdivision (d), the prosecution has the burden of proving by a preponderance of the evidence that the evidence was not obtained as a result of an unlawful search or seizure, that the evidence would have been obtained even if the unlawful search or seizure had not been made, or that the evidence was obtained by officials who reasonably and with good faith relied on the issuance of an authorization to search, seize, or apprehend or a search warrant or an arrest warrant.
• Probable cause is determined based on the totality of the circumstances. Illinois v. Gates, 462 U.S. 213 (1983). A magistrate’s decision is reviewed to determine whether a substantial basis existed for that determination in light of the facts known to the reviewing officer at the time. Gates replaced an older line of cases that said you needed to overcome a number of specific tests. Those tests are not hurdles per se, but they still survive within the context of the “totality” test.
• Veracity and basis of knowledge (reliability) of the informant - Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969).
• Specificity of the information – The affidavits, etc. must establish the probability that criminal activity is concealed on the specific premises and describe the place to be searched or things to be seized with sufficient particularity. United States v. Spilotro, 800 F.2d 959, 963 (9th Cir., 1986). It needs to support more than mere suspicion. Draper v. Jones, 358 U.S. 307 (1959); United States v. Jones, 545 F.2d 1112 (8th Cir. 1976).
• Nexus between the evidence and the location - United States v. Whiting, 13 M.J. 804 (A.F.C.M.R. 1979) (finding of classified documents in storage shed near AC’s apartment did not, by itself, create probable cause to search the apartment); United States v. Hendricks, 743 F.2d 653 (9th Cir. 1984) (package of drugs addressed to AC’s business, in police possession, did not give probable cause to search AC’s home); United States v. Rosario, 918 F. Supp. 524 (D.R.I.) 1996 (evidence that AC sold cocaine combined with observations of suspicious patterns of visits at residence in same city during same time period did not support finding of probable cause, even where experienced agents opined that evidence was most likely kept in the residence); United States v. Jenkins, 901 F.2d 1075 (9th Cir. 1997) (magistrate had basis to authorize home search when resident was known to have robbed bank near that place and recently, where experienced FBI agent affirmed that bank robbers usually store proceeds at home, and where no other reasonable alternative was suggested or likely); United States v. Johnson, 23 M.J. 109 (A.F.C.C.A. 1987) (evidence that accused had recently stolen stereo expender which was not found in search of on-post quarters gave sufficient probable cause to search off-post quarters in same town five days later, when accused seen going in and out of house with bag large enough to conceal expander).
• Freshness or staleness of the information - Cases are specific to different kinds of evidence, ie drugs, child porn, guns, etc. For child porn cases, see United States v. Gallo, 55 M.J. 418 (CAAF 2001) (5 years not too long, CID affidavit showed AC was pedophile who would keep child porn for many years).
• Good faith exception – Law enforcement officers acting in good faith find the evidence while relying on a facially valid warrant. Affidavit cannot be false or provided recklessly. United States v. Jones, 208 F.3d 603, 607 (7th Cir. 2000); Cravens, No. 01-0249, Crim. App. No. 33438 (CAAF 2002) (to show reckless disregard for truth, DC must offer evidence that affiant in fact entertained serious doubts about the truth of his allegations or had obvious reasons to doubt the veracity of the allegations). United States v. Leon, 468 U.S. 897, 914 (1984); United States v. Fogg, 52 M.J. 144 (C.A.A.F. 1999). Agents are expected to have a reasonable knowledge of what the law prohibits. Also not if the affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Does not apply where the magistrate himself wholly abandons his judicial role in granting the authorization.

M to Suppress Confession (Lack of Corroboration) - Military Rule of Evidence (MRE) 304(g) prohibits consideration of confessions and admissions by an accused for which no independent corroborating evidence exists. United States v. Duval, 47 M.J. 189 (C.A.A.F. 1997), (Ct rev’d conviction for wrongful use of marijuana where the sole evidence was an admission by the accused that he had smoked marijuana several years before); United States v. Hall, 50 M.J. 247 (C.A.A.F. 1999) (confession was sufficiently corroborated where act admitted to was part of a continuous course of illegal conduct, proven conduct occurred both before and after conduct admitted to and was similar in nature).

M to Suppress Confession – Illegal Wiretap – 18 USC, Secs. 2510-2520 (“The Wiretap Act”) prohibits interception and use of private electronic communications (phone, e-mail) without authorization such as a warrant. The Government may not use such evidence simply because it an innocent recipient of that evidence “wiretapped” by others. Chandler v. United States Army, 125 F.3d 1296 at 1299 (9th Cir. 1997). The Wiretap Act provides that ‘no part of the contents’ of an improperly intercepted communication ‘and no evidence derived therefrom’ may be received in evidence in any proceeding.” Id. at 1304. See also Gelbard v. United States, 408 U.S. 42, 51 (1972). The Act covers private, password-protected e-mail and phone lines, but not government e-mail or phones.