Motions Waiver Checklist
False Accusations of Sexual Assault in the Military & Why Are They So Common?
Suppression of Confession or 1. Failure to raise before submission of plea [after proper disclosure by Admission. trial counsel under MRE 304(d)(1)], except for good cause shown, as permitted by the military judge. MRE 304(d)(2)(A)]. 2. Plea of guilty regardless of whether the motion was raised prior to plea, unless conditional plea. MRE 304(d)(5).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. MRE 304(e). Suppression of evidence 1. Failure to raise before submission of plea [after proper disclosure by seized from the accused trial counsel under MRE 311(d)(1)], except for good cause shown, as or believed owned by the permitted by the military judge. MRE 311(d)(2). accused. 2. Plea of guilty, regardless of whether the motion was raised prior to plea. MRE. 311(i). 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. MRE 311(e)(3). Suppression of Eyewitness 1. Failure to raise before submission of plea [after proper disclosure by ID. trial counsel under MRE 321(c)(1)], except for good cause shown, as permitted by the military judge. MRE 321(c)(2)(A). 2. Plea of guilty, regardless of whether raised prior to plea. MRE 321(g). 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. MRE 321(d). Defects (other than Failure to raise before plea is entered. R.C.M. 905(b)(1). jurisdiction) in preferral, forwarding, investigation, or referral of charges. Motions for discovery (RCM Failure to raise before plea is entered. R.C.M. 905(b)(4). 701), or for production of witnesses or evidence. Defects in Charges or Specs Failure to raise before plea is entered. R.C.M. 905(b)(2). (other than juris. or stating offense). Motions for severance of Failure to raise before plea is entered. R.C.M. 905(b)(5). charges or accused. Objections to denial of IMC Failure to raise before plea is entered. R.C.M. 905(b)(6). request or for retention of detailed counsel when IMC granted. Lack of jurisdiction over Not Waivable. R.C.M. 907(b)(1)(A). accused. Command Influence Generally Not Waivable. But see
U.S. v. Weasler
, 43 M.J. 15 (1995). (Defense initiated waiver of UCI in accusatory phase for favorable PTA is permissible), and
U.S. v. Drayton
, 45 M.J. 180 (1996). (Failure to raise accusatory UCI constitutes waiver.) Failure to State Offense Not Waivable. RCM 907(b)(1)(B). Improperly Convened CM Not Waivable. (Incorrect Member Subst.) 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 Failure to file written motion 5 days before trial. MRE 412(c)(1)(A). Behavior or Predisposition. Former Jeopardy Waived if not raised before final adjournment of the court. R.C.M .907(b)(2)(C). Pardon, grant of immunity, Waived if not raised before final adjournment of the court. R.C.M. condonation of desertion or 907(b)(2)(D). prior punishment under Articles 13 & 15. NOTE: RCM 910(j) provides that [except for a conditional guilty plea under RCM 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. RCM 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.