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

procedureOverview of the procedure of motions to suppress:

Disclosure by the Government

  • Notice of motion by defense.
  • 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) 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.
  • 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).
  • Essential findings of fact, prior to plea.
  • Guilty plea waives, except conditional guilty plea.