Motions in a Court-Martial: Suppress, Dismiss, and Appropriate Relief

The R.C.M. 905 framework

A motion is nothing more — and nothing less — than a request to the military judge for particular relief, grounded in a specific rule or case. Rule for Courts-Martial 905 governs how every motion is made: on notice to the judge and opposing counsel, supported by grounds, and usually litigated at an Article 39(a) session after arraignment and before a plea is entered.

Around that core rule sit the specialized rules: R.C.M. 906 for motions for appropriate relief, R.C.M. 907 for motions to dismiss, R.C.M. 915 for mistrials, R.C.M. 917 for motions for a finding of not guilty, and the Military Rules of Evidence — M.R.E. 304, 311, and 321 — for suppression. This guide maps the whole system; the deep dives that follow take each major motion apart. It sits within the larger trial stage of a court-martial, where every one of these requests is ultimately decided.

The main types of motions

The appropriate-relief category is the broadest. Common R.C.M. 906 motions include continuances for an unavailable witness or to obtain civilian counsel; motions to amend charges, for a bill of particulars, or to sever offenses or accused; challenges to a defective preliminary hearing or pretrial advice; discovery and witness production motions; requests concerning individual military counsel; motions about pretrial restraint; and motions to change the location of trial. On continuances, the case law rewards diligence and punishes gamesmanship: a judge who bent over backwards could deny a fourth continuance to secure civilian counsel who never appeared (United States v. Thomas, 22 M.J. 57 (C.M.A. 1986)), while denying a civilian counsel’s first and only request after he personally appeared was an abuse of discretion (United States v. Wilson, 28 M.J. 1054 (N.M.C.M.R. 1989)).

Severance of offenses is deliberately hard to win — granted only to prevent manifest injustice, R.C.M. 906(b)(10) — but not impossible. In United States v. Giles, 59 M.J. 374 (C.A.A.F. 2004), the judge abused his discretion by refusing to sever new perjury charges from the rehearing of an earlier attempt offense, because proving the perjury required evidence of the prior conviction and the combination denied the accused a fair trial. Severance motions, like multiplicity challenges, attack how the government packaged the case — sometimes the most damaging thing about the charge sheet.

Timing: before pleas, before adjournment, or anytime

R.C.M. 905(b) and (e) sort motions into three timing tiers, and the tier controls everything. First, the motions that must be raised before a plea is entered, absent good cause:

• Defects in preferral, forwarding, and referral of charges;
• Defects in the charges and specifications;
• Suppression of evidence;
• Discovery and witness production;
• Severance of charges, specifications, or accused;
• Objections based on denial of an individual military counsel request.

Second, the motions that must be made before final adjournment: continuances, speedy trial, release from pretrial confinement, statute of limitations, former jeopardy, grants of immunity, and failure to state an offense. Third, the issues that can be raised at any time, including on appeal: lack of jurisdiction over the accused or the offense, and adjudicative-phase unlawful command influence. Article 10 speedy trial claims occupy a special niche — if litigated before pleas, they survive even a guilty plea. United States v. Mizgala, 61 M.J. 122 (C.A.A.F. 2005). The full deadline-by-deadline breakdown lives in our motions waiver checklist, linked below.

Who has the burden, and how much proof

The default rule is simple: the moving party bears the burden of proof by a preponderance of the evidence. R.C.M. 905(c). But the exceptions swallow much of the rule, because the government carries the burden on the issues that matter most to the defense:

• Jurisdiction — R.C.M. 905(c)(2)(B);
• Speedy trial — R.C.M. 905(c)(2)(B);
• Statute of limitations — R.C.M. 905(c)(2)(B);
• Suppression of confessions, seized evidence, and identifications — Section III of the Military Rules of Evidence;
• Unlawful command influence — once the defense raises some evidence of UCI, the government must disprove it beyond a reasonable doubt. United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999).

The standard also shifts upward in defined pockets: the government must prove certain subterfuge inspections, consent searches, and challenged identifications by clear and convincing evidence. M.R.E. 313(b), 314(e)(5), 321(d)(6). Knowing who must prove what — and to what standard — is half of motions strategy, because a well-framed motion can force the government to do the proving.

Proving a motion: evidence, not argument

A motion must rest on a factual predicate — actual evidence, not counsel’s say-so. Offers of proof are permitted but disfavored, especially where the other side contradicts them, and a proper offer must be specific: names, addresses, and a summary of the expected testimony. United States v. Hodge, 26 M.J. 596 (A.C.M.R. 1988). The Court of Military Appeals put the warning bluntly:

“[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 . . . 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.”United States v. Stubbs, 23 M.J. 188, 195 (C.M.A. 1987)

The rules of evidence apply at motions hearings, including Article 39(a) sessions, with a practical carve-out: except for privileges, they relax when the judge decides preliminary questions such as witness availability, admissibility, or competence. M.R.E. 104(a), 1101(a). For the defense, the lesson is to build motions the way you build a case — witnesses, documents, stipulations — because appellate courts review the record that was made, not the record that was described.

A well-built written motion follows a fixed anatomy: the relief sought and the reason for it, a statement of who bears the burden and at what standard, the determinative facts, the witnesses and evidence that will prove each fact, and the legal argument — issue, rule, analysis, conclusion, one sequence per theory. The facts section is often drafted last, once the argument reveals which facts actually decide the motion, and stipulating to undisputed facts with the government focuses the hearing on what is genuinely contested.

Written vs. oral motions and Article 39(a) sessions

Motions may be written or oral. Written motions must be served on all parties, R.C.M. 905(i), and may be disposed of before arraignment without an Article 39(a) session — but when a party requests a hearing on a written motion, the military judge must hold one. R.C.M. 905(h); United States v. Savard, 69 M.J. 211 (C.A.A.F. 2010). Most contested motions are litigated at an Article 39(a) session: a session of the court-martial held by the judge alone, outside the presence of any members, typically after arraignment and before pleas.

Local rules matter too. Trial judiciary rules — in the Army, the Rules of Practice Before Army Courts-Martial — are valid so long as they do not conflict with the Manual for Courts-Martial, and they set the filing formats and deadlines counsel actually live by. United States v. Williams, 23 M.J. 362 (C.M.A. 1987). In cases involving alleged sexual offenses, a victim also has a right to be heard through counsel on motions implicating M.R.E. 412, 513, and 514, so Special Victims’ Counsel are served with and may respond to motions touching their client’s interests. LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013).

Motions in limine

A motion in limine seeks a preliminary ruling on admissibility outside the members’ presence — the workhorse for fighting over uncharged misconduct under M.R.E. 404(b), propensity evidence under M.R.E. 413 and 414, prior convictions offered for impeachment, and evidence of a victim’s sexual behavior under M.R.E. 412. Either side may file one, and the government sometimes uses them as a preemptive strike to exclude anticipated defense evidence — as in United States v. Huet-Vaughn, 43 M.J. 105 (C.A.A.F. 1995), where in limine rulings kept an accused physician from presenting her reasons for refusing to deploy.

Two traps deserve flags. The judge may defer ruling until trial when judicial economy justifies it, R.C.M. 905(d) — so a motion filed early is not necessarily decided early. And preservation has teeth: an accused must actually testify to preserve review of a denied in limine motion about a prior conviction, United States v. Sutton, 31 M.J. 11 (C.M.A. 1990) (adopting Luce v. United States, 469 U.S. 38 (1984)), while a party who obtains an unconditional, unfavorable ruling in an out-of-court session need not renew the objection at trial — though a tentative ruling does require one. United States v. Sheridan, 43 M.J. 682 (A.F. Ct. Crim. App. 1995).

Rulings, essential findings, and reconsideration

Rulings generally come at the earliest possible time, unless the judge defers for good cause. Where factual issues are involved, the military judge shall state essential findings on the record — R.C.M. 905(d) — and those findings are what an appellate court later reviews. A ruling is not necessarily final: the judge may reconsider any ruling other than one amounting to a finding of not guilty at any time before the record is authenticated, on either party’s request or sua sponte. R.C.M. 905(f). The one-way exception: a granted motion for a finding of not guilty can never be reconsidered.

Losing a motion is not the end. The defense can seek relief through extraordinary writs in rare cases, and the government can appeal certain rulings under R.C.M. 908 — which is itself a reason judges make careful records. After trial, R.C.M. 1104 post-trial sessions let the judge resolve matters that surface late: newly discovered evidence, member misconduct allegations, a plea that unravels, even a lost record. Until authentication, the military judge who becomes aware of prejudicial error retains real remedial power — including setting aside findings and sentence. United States v. Scaff, 29 M.J. 60 (C.M.A. 1989).

Post-trial motions run on their own clocks: they must be filed within 14 days after defense counsel receives the Statement of Trial Results, extendable by up to 30 days for good cause; a motion to correct an error in the convening authority’s action within five days of receiving it; and a motion to correct a clerical or computational error in the judgment within five days of receiving the judgment. R.C.M. 1104(b)(2). The deadlines are short by design — the window between findings and entry of judgment closes fast, and issues not raised in it move to the appellate courts.

Why motions practice decides courts-martial

Trials are won in front of members; cases are won before members ever enter the room. A granted suppression motion can gut the government’s proof. A granted dismissal ends the case. A granted severance changes what the panel hears. Even losing motions serves the defense — it forces the government to commit to positions, generates a record for appeal, and educates the judge about the case’s weaknesses.

The converse is equally true: an unconditional guilty plea waives all issues that are not jurisdictional and do not deprive the accused of due process — including suppression motions already litigated and lost. United States v. Cooper, 32 M.J. 83 (C.M.A. 1991). The narrow escape hatch is the conditional guilty plea under R.C.M. 910(a)(2), which preserves specified pretrial motions for appellate review with the judge’s approval and the government’s consent. That interplay — what survives, what dies, and when — is mapped issue-by-issue in the waiver checklist.

Frequently asked questions

Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.