Pretrial Motions in a Court-Martial

Why Motions Matter

As military defense lawyers, we believe pretrial motions should be filed whenever possible.

Motions can exclude bad evidence, get good evidence admitted, and shape the entire nature of the case we’re defending.

A successful motion to suppress evidence can change the course of a case.

Unfortunately, we see too many young defense counsel skip motions because they believe “the motion is a loser.”

That’s a mistake. Even if a motion is denied, raising the issue preserves it for appeal.

If you don’t raise it, appellate courts often consider the issue waived — and won’t review it later.

Challenging Evidence Before Trial

Challenging the prosecution’s evidence — often through motions in limine — should be part of every military defense lawyer’s toolkit.

Under the UCMJ, the Manual for Courts-Martial, and relevant court rules, a defense attorney can file motions before trial begins.

Doing so prevents the prosecutor from presenting improper evidence in front of the members (the military equivalent of a jury).

Example 1: The Investigator’s Testimony

When the prosecution calls an investigator to “set the stage,” we object.

This type of context testimony is often irrelevant, introduces hearsay, and can violate your constitutional right to confrontation.

Typically, the investigator gives a long narrative — who called them, who they spoke to, what they were told, and what they did next.

In the process, they repeat hearsay statements, give opinions, and waste court time — all issues under Military Rule of Evidence 403.

The only proper testimony should be factual and limited, such as:

“As a result of an allegation, I collected these items of evidence.”

“The accused was identified as a suspect, so I interviewed him.”

When challenged, prosecutors often claim this testimony is just “background” or “context,” not offered for its truth.

But this kind of evidence usually does nothing except prejudice the accused and bolster the government’s case.

We rely on federal precedent and the Confrontation Clause to exclude it wherever possible.

Example 2: Prior Bad Acts (Rule 404(b))

When prosecutors try to introduce “other acts” evidence to imply you committed the crime, we challenge it under Military Rule of Evidence 404(b).

Rule 404(b) allows prosecutors to use prior acts only for narrow reasons — such as showing:

• A specific modus operandi
• Lack of mistake
• Part of a larger plan

We file pretrial motions to exclude this evidence and make the government prove why it’s relevant and admissible.

Too often, prosecutors file vague notices with no clear theory of admissibility.

We argue they must specify their theory and meet the three-part test from United States v. Reynolds, 29 M.J. 105 (C.M.A. 1989):

1. Does the evidence support a finding that the accused committed prior acts?
2. What fact of consequence does it make more or less probable?
3. Is the probative value substantially outweighed by unfair prejudice?

If the government can’t meet that standard, the evidence stays out.

Courts have long warned against using prior acts just to show someone is a “bad person.”

That’s improper propensity evidence — see United States v. Humphreys, 57 M.J. 83 (C.A.A.F. 2002) and United States v. Stanczyk (2014).

In drug cases, prosecutors sometimes try to introduce past drug use as proof of current use.

That’s not allowed — past use doesn’t prove the charged offense.

See United States v. Cousins, 35 M.J. 70 (C.M.A. 1992) and United States v. Frey, 73 M.J. 245 (C.A.A.F. 2014).

Why We File Motions Aggressively

At our firm, we file motions whenever we can because we believe aggressive military defense means controlling what evidence reaches the members.

Every piece of evidence should be relevant, reliable, and legally admissible.

If it isn’t, we fight to keep it out.

Bottom Line

Pretrial motions are one of the most powerful tools available to a defense lawyer at court-martial.

They can define your trial, protect your rights, and sometimes win your case before it begins.

If you’re facing court-martial, make sure your attorney knows how to use motions effectively — and isn’t afraid to fight for you.

Call us today.

We’ll review your case, evaluate possible motions, and start building your defense strategy today.

Frequently Asked Questions About Motions in Court-Martial

What is a pretrial motion in a court-martial?

A pretrial motion is a formal request made before trial asking the judge to rule on specific legal issues — such as excluding evidence, suppressing statements, or dismissing charges.

Why are pretrial motions important?

They can determine what evidence the members (jury) are allowed to hear.

A single successful motion — for example, suppressing an unlawful confession — can completely change the outcome of a case.

Can motions really win a case before trial?

Yes. If key evidence is excluded, the prosecution’s case may collapse.

Sometimes, winning a pretrial motion can lead to a dismissal or much stronger plea negotiation position.

What are common types of motions in a court-martial?

• Motion to suppress evidence (Fourth or Fifth Amendment violations)
• Motion to exclude prior bad acts under Rule 404(b)
• Motion to dismiss charges for lack of evidence or unlawful command influence
• Motion in limine to limit what the prosecution can say in front of the members

Can I raise a motion after the trial starts?

In most cases, no. Failing to raise an issue before trial often means you waive your right to challenge it later.

That’s why it’s critical to have a defense lawyer who files motions proactively.

Does filing motions make me look guilty?

Not at all. Filing motions shows that your attorney is protecting your constitutional rights and ensuring a fair trial.

Judges and prosecutors expect experienced defense lawyers to file motions when warranted.

How do I know if I have a valid motion?

The best way is to talk to a military defense attorney experienced in motion practice.

Every case is different, and many strong motions are overlooked by inexperienced counsel.ible evidence is used against you.

By PhilIp Cave and Nathan Freeburg at www.court-martial.com