Which Motions Are Waived If Not Raised
Key takeaways
- R.C.M. 905(e) is the master rule: untimely motions are waived unless the military judge finds good cause — but the rules are “liberally construed” in favor of hearing the accused. United States v. Coffin, 25 M.J. 32 (C.M.A. 1987).
- The before-pleas group is the largest and least forgiving: suppression, discovery and production, charging defects, severance, and IMC objections.
- The before-final-adjournment group: speedy trial, statute of limitations, former jeopardy, pardon, immunity, condonation, and prior punishment.
- The never-waived core: jurisdiction over the accused, adjudicative unlawful command influence, and an improperly convened court.
- A guilty plea is the ultimate waiver — R.C.M. 910(j) extinguishes objections relating to the factual issue of guilt, unless a conditional plea preserves them.
Waived vs. forfeited: why the words matter
Courts use “waiver” loosely, but the concepts differ: forfeiture is the failure to timely assert a right, which usually leaves appellate review for plain error; waiver is the intentional relinquishment of a known right, which extinguishes the issue entirely. The distinction has real force for constitutional claims — there is a presumption against waiver of constitutional rights, and an effective waiver must be clearly established as intentional. United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011). Under R.C.M. 905(e), failure to meet a motion deadline is “generally considered waiver” unless the judge finds good cause — which is exactly why the deadlines below deserve a checklist. This page is the timing companion to our guide to motions in a court-martial.
The motions waiver checklist
The Deskbook’s issue-by-issue accounting, consolidated:
| Issue | Deadline | Consequence of missing it |
|---|---|---|
| Suppression of a confession or admission | Before submission of plea, after government disclosure. M.R.E. 304 | Waived absent good cause; guilty plea waives regardless, unless conditional; burden on the prosecution extends only to grounds actually raised |
| Suppression of seized evidence | Before submission of plea, after disclosure. M.R.E. 311 | Same three-part rule |
| Suppression of eyewitness identification | Before submission of plea, after disclosure. M.R.E. 321 | Same three-part rule |
| Non-jurisdictional defects in preferral, forwarding, investigation, or referral | Before plea. R.C.M. 905(b)(1) | Waived |
| Discovery and production of witnesses or evidence | Before plea. R.C.M. 905(b)(4) | Waived |
| Defects in charges and specifications (other than jurisdiction or failure to state an offense) | Before plea. R.C.M. 905(b)(2) | Waived |
| Severance of charges or accused | Before plea. R.C.M. 905(b)(5) | Waived |
| Denial of IMC request / retention of detailed counsel | Before plea. R.C.M. 905(b)(6) | Waived |
| Speedy trial | Before final adjournment. R.C.M. 907(b)(2)(A) | Waived; also waived by guilty plea unless conditional — but Article 10 claims survive a guilty plea |
| Statute of limitations | Before final adjournment. R.C.M. 907(b)(2)(B) | Waived — but only if the accused appears aware of the right; otherwise the judge must advise |
| Former jeopardy | Before final adjournment. R.C.M. 907(b)(2)(C) | Waived |
| Pardon, immunity, condonation of desertion, prior punishment under Articles 13 and 15 | Before final adjournment. R.C.M. 907(b)(2)(D) | Waived |
| Failure to state an offense | Before final adjournment. R.C.M. 907(b)(2)(E) | Waivable under the current rule |
| Offering evidence of a victim’s sexual behavior or predisposition | Written motion five days before entry of pleas. M.R.E. 412(c)(1) | Waived |
| Lack of jurisdiction over the accused | None | Not waivable. R.C.M. 907(b)(1) |
| Unlawful command influence | None (adjudicative phase) | Generally not waivable — but defense-initiated waiver of accusatory UCI is permissible, and failing to raise accusatory UCI can waive it |
| Improperly convened court-martial | None | Not waivable |
The before-pleas group
The largest cluster of deadlines falls at the moment pleas are entered, under R.C.M. 905(b): suppression motions in all three tracks, discovery and production motions, objections to defects in the charges and specifications and in preferral and referral processing, severance, and objections to the denial of an individual military counsel request. The logic is judicial economy — these defects can be cured or litigated cleanly before trial — but the effect is a minefield for the unwary: the arraignment session, which many accused experience as a formality, is actually the deadline that kills more defense issues than any other. One special case runs even earlier: a defense motion to offer evidence under M.R.E. 412 requires a written motion five days before entry of pleas.
Two edge cases soften the deadline’s harshest applications. Where the defense moved before pleas but the military judge wanted the pleas entered first to develop the facts needed to decide the motion, there was no waiver — the sequencing was the court’s choice, not the defense’s default. United States v. Lippoldt, 34 M.J. 523 (A.F.C.M.R. 1991). And when the government makes a preemptive strike in limine to exclude anticipated defense evidence, the defense’s failure to make an offer of proof does not waive the issue on appeal, so long as the evidentiary question is apparent from the record. United States v. Rivera, 24 M.J. 156 (C.M.A. 1987). Neither case is a reason to file late; both are arguments to make when the government claims you did.
The final-adjournment group
The R.C.M. 907(b)(2) grounds — speedy trial, statute of limitations, former jeopardy, pardon, immunity, condonation of desertion, and prior punishment under Articles 13 and 15 — must be raised before the court-martial adjourns for the last time. Two refinements matter. The limitations waiver is conditional: it operates only where the accused appears aware of the right to assert the statute; otherwise the military judge must inform the accused of it. R.C.M. 907(b)(2)(B). And the prior-punishment ground covers both illegal pretrial punishment credit under Article 13 and the prior Article 15 rules — issues that are easy to leave money on the table with, since they sound in sentencing but must be claimed as motions. The grounds themselves are unpacked in motions to dismiss under R.C.M. 907.
The never-waived group
Three issues survive every deadline: lack of jurisdiction over the accused or the offense; an improperly convened court-martial; and unlawful command influence in the adjudicative phase. Even here there is nuance. Accusatory-phase UCI is treated differently: a defense-initiated waiver in exchange for a favorable pretrial agreement is permissible (United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995)), and simply failing to raise accusatory UCI at trial can constitute waiver (United States v. Drayton, 45 M.J. 180 (C.A.A.F. 1996)). The lesson is not to lean on nonwaivability — it is that even the strongest issues get stronger when raised early and on a full record.
What a guilty plea sweeps away
The most consequential waiver in military justice is entered in a single word. The rule:
“[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(j)
Applied, that means an unconditional guilty plea waives suppression rulings already litigated and lost, pretrial processing defects, and unreasonable multiplication of charges (United States v. Hardy, 77 M.J. 438 (C.A.A.F. 2018)) — while jurisdiction, failure to allege an offense, adjudicative UCI, post-trial defects, and litigated Article 10 claims (United States v. Mizgala, 61 M.J. 122 (C.A.A.F. 2005)) survive. The pressure valve is the conditional guilty plea under R.C.M. 910(a)(2), which — with the judge’s approval and the government’s consent — reserves specified pretrial motions in writing for appellate review. The plea decision and the motions inventory are one decision, made together, as part of the providence process.
What this means if you’re deciding how to plead
Before you enter any plea, you should be able to answer one question: which issues in my case are still alive, and what does this plea do to each of them? A guilty plea — even a wise one — silently extinguishes suppression rulings, processing defects, and multiplication claims your lawyer may have spent months litigating, unless a conditional plea preserves them. That inventory conversation with counsel is not optional paperwork; it is the last moment some of your strongest issues exist. Have it deliberately, and have it early.
The good-cause escape hatch
Waiver under R.C.M. 905(e) is not quite absolute: the military judge may entertain an untimely motion for good cause, and 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). The case law marks the hatch’s edges. Good cause exists where the defense could not discover the issue because the government sandbagged it — Coffin itself. It does not exist where the judge fully probed counsel’s reasons for not filing and the prosecution did nothing to contribute to the defense’s choice. United States v. Jameson, 65 M.J. 160, 162 (C.A.A.F. 2007). In other words: good cause rescues the ambushed, not the strategic or the slow. Build the motions calendar as if the hatch does not exist.
Practitioner’s note
We run a waiver audit at three fixed points in every case: at case intake, before arraignment, and before any plea. It is a literal checklist — each issue in the case matched against its deadline, with a written decision to raise, reserve, or release. The audit exists because waiver failures are silent: nothing happens in the courtroom when a deadline passes, and the issue’s absence is discovered a year later by appellate counsel who can do nothing about it. When we do inherit a missed deadline, we litigate good cause with evidence — what the government disclosed and when — because Jameson shows judges will probe, on the record, exactly why the motion came late.
Frequently asked questions
Which court-martial motions must be raised before pleas are entered?
Suppression of statements, seized evidence, and identifications; discovery and witness production; non-jurisdictional defects in preferral, forwarding, and referral; defects in the charges and specifications; severance of charges or accused; and objections to denial of an individual military counsel request. Miss the plea deadline and each is waived absent good cause.
What issues can never be waived in a court-martial?
Lack of jurisdiction over the accused or offense, an improperly convened court-martial, and adjudicative-phase unlawful command influence — all can be raised at any time, including on appeal. Accusatory-phase command influence is the exception within the exception: it can be waived, either deliberately in a pretrial agreement or by failing to raise it.
What is the difference between waiver and forfeiture in military law?
Forfeiture is failing to assert a right in time, which typically still allows plain-error review on appeal. Waiver is the intentional relinquishment of a known right, which extinguishes the issue completely. Courts presume against waiver of constitutional rights and require clear evidence the accused knowingly gave the right up.
Does a guilty plea waive all the motions my lawyer already filed?
Most of them. Under R.C.M. 910(j), an unconditional guilty plea waives objections relating to the factual issue of guilt — including denied suppression motions, processing defects, and unreasonable multiplication claims. Jurisdiction, failure to state an offense, adjudicative command influence, and litigated Article 10 speedy trial claims survive. A conditional plea can preserve specified motions in writing.
Can a military judge hear a motion that was filed late?
Yes, on a showing of good cause under R.C.M. 905(e), and the rules are construed liberally in favor of letting the accused be heard. Good cause covers issues the defense could not have discovered — government sandbagging is the classic example. It does not cover strategic or negligent delay the prosecution did nothing to cause.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington has spent more than 25 years on both sides of the waiver rules — as an Army prosecutor invoking them and as a defense counsel and civilian military defense lawyer refusing to be caught by them. In courts-martial worldwide he has litigated good-cause fights, negotiated conditional pleas to keep suppression issues alive, and, as a trial advocacy author and instructor, taught the deadline discipline this checklist codifies: every issue inventoried, every decision to raise or release made in writing.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has spent over 20 years protecting clients’ issues from silent expiration — in sexual assault, war crimes, and white-collar courts-martial where the motions inventory ran pages long. She conducts the pre-plea waiver reviews this page describes, walking each client through what a plea preserves and what it destroys, and she legally reviewed this checklist against R.C.M. 905, 907, and 910 and current CAAF law.
Talk to a civilian court-martial defense lawyer today
Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
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.