Pretrial Motions in a Court-Martial: Suppression, Dismissal, and Discovery

Published Read 11 min read

On this page

Motions are argued to the military judge, decided by the military judge, and heard with the panel out of the room. The Uniform Code of Military Justice creates the session where that happens, states who rules, and makes the ruling final as the ruling of the court. The grounds for each kind of motion are largely in the Manual for Courts-Martial, which this page did not open; the statutory hooks that the three kinds of motion in the title hang from are in the Code, and they are what this page sets out.

It does not tell anyone whether a motion is available in their case, and it gives no advice.

The session where motions are heard

Article 39(a) creates it and lists what belongs there, with motions first.

“(a) At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to section 835 of this title (article 35), call the court into session without the presence of the members for the purpose of— (1) hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty; (2) hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members of the court”

Source: 10 U.S.C. 839 (Article 39), subsection (a)(1) and (a)(2).

Three things follow from that text.

The panel is absent. Motions are heard “without the presence of the members”, which is the structural reason an evidentiary dispute does not taint the panel.

The test for paragraph (1) is a narrow one. The motions heard there raise defenses or objections “which are capable of determination without trial of the issues raised by a plea of not guilty.” A matter that can only be resolved by trying the merits does not belong in a pretrial motion.

Paragraph (2) is broader than paragraph (1). It reaches any matter the judge may rule on under the chapter, “whether or not the matter is appropriate for later consideration or decision by the members.”

Subsection (b) fixes attendance: the accused, defense counsel and trial counsel.

Who decides, and how final it is

“(b) The military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused is final and constitutes the ruling of the court, except that the military judge may change a ruling at any time during trial.”

Source: 10 U.S.C. 851 (Article 51), subsection (b).

The ruling is the ruling of the court; the members do not review it. One carve-out exists, the factual issue of mental responsibility, and the judge may revisit a ruling at any time during trial.

Suppression: the statutory ground the Code supplies

Most suppression grounds are in the Military Rules of Evidence. One is in the statute, and it is self-contained.

“(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.”

Source: 10 U.S.C. 831 (Article 31), subsection (d).

Two independent routes are in that sentence: a violation of Article 31 itself, or coercion, unlawful influence or unlawful inducement. The second does not require the first. Whether the first route is available turns on a limitation that is not in the statute: case law confines the Article 31(b) warning duty to questioning in an official capacity, and this site did not open that case law. The article’s four subsections are set out in Article 31 rights.

Article 31(c) supplies a narrower prohibition on compelling a statement or evidence that “is not material to the issue and may tend to degrade” the person, and both conditions must hold.

Dismissal: the statutory hooks

The Code does not contain a general dismissal provision, but several articles create conditions whose absence is a defect, and those are where dismissal arguments attach.

Jurisdiction. Article 2 fixes who is subject to the Code, Articles 18 to 20 fix what each forum may try, and Article 5 states that the chapter “applies in all places.” All three are covered on their own pages, beginning with personal jurisdiction.

The referral precondition. Article 34 provides that the convening authority “may not refer a specification under a charge to a general court-martial unless the staff judge advocate advises the convening authority in writing” that the specification alleges an offense, that there is probable cause, and that a court-martial would have jurisdiction.

The preliminary hearing. Article 32(a)(1)(A) requires a hearing before referral to a general court-martial unless waived under the article’s own terms.

The charging formalities. Article 30 requires charges to be preferred by a person subject to the Code, in writing, signed under oath, and to state that the signer has personal knowledge or has investigated the matters.

Pretrial delay. Article 10(b)(1) requires that when a person is placed in arrest or confinement before trial, “immediate steps shall be taken” to inform the person of the offense and “to try the person or to dismiss the charges and release the person.”

Command influence. Article 37 prohibits a convening authority or commanding officer from censuring the court, a member, the judge or counsel with respect to the findings or sentence, and from deterring a witness from participating or testifying.

Discovery: what the Code guarantees

“(a) Opportunity To Obtain Witnesses and Other Evidence.—In a case referred for trial by court-martial, the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.”

Source: 10 U.S.C. 846 (Article 46), subsection (a).

“Equal opportunity” is the statutory standard. The mechanics are delegated, but the Code constrains them: process “shall be similar to that which courts of the United States having criminal jurisdiction may issue”, and it “shall run to any part of the United States and to the Commonwealths and possessions of the United States.”

Subpoenas may compel a witness to appear before a court-martial, at a deposition under Article 49, or as otherwise authorised under the chapter, and may compel production of evidence for those proceedings and for an investigation of an offense.

Which rule each motion runs under

The statutory hooks above are where a motion attaches. The rule that governs how it is made is in the Manual, and the Army’s criminal law deskbook identifies the map:

R.C.M. 905    motions generally
  R.C.M. 906    motions for appropriate relief
  R.C.M. 907    motions to dismiss
  R.C.M. 915    mistrial
  R.C.M. 917    motion for a finding of not guilty
  R.C.M. 701    discovery
  R.C.M. 703    production of witnesses and evidence

Source: The Judge Advocate General’s Legal Center and School, Criminal Law Deskbook, Motions. These are the deskbook’s formulations, not the text of the rule or of any opinion, neither of which was opened.

The deskbook’s own formulations separate what the titles blur. A motion is “a request to the judge for particular relief”. Appropriate relief under R.C.M. 906 is sought “to cure a defect which deprives a party of a right or hinders a party from preparing or presenting its case”, which makes it the route for a defect that can be cured. Dismissal under R.C.M. 907 asks the judge to “terminate the proceedings as to those charges and specifications without a trial”, and that is where an incurable one goes. And R.C.M. 917 sits later than the others: a motion for a finding of not guilty is made “after the evidence on either side is closed and before findings”, which makes it a sufficiency challenge rather than a pretrial motion at all.

That last distinction matters for this page’s title. Three of the seven rules above are not pretrial: 915 and 917 operate during trial, and 703 can run either side of it.

Three rules this page can quote, because an order amended them

The Manual was not opened. A presidential order amending it was, and it carries the current text of the rules it changed. Three of them are motions rules.

Producing a defence witness. The Code guarantees equal opportunity; this rule says who does the work.

“(D) Determination. Trial counsel shall arrange for the presence of any witness listed by the defense unless trial counsel contends that the witness’s production is not required under this rule. If trial counsel contends that the witness’s production is not required by this rule, the matter may be submitted to the military judge. For good cause shown, the submission by the defense may be made by ex parte motion. If the military judge grants a motion for a witness, the trial counsel shall produce the witness or the proceedings may be abated.”

Source: Executive Order 14130, 20 December 2024, Annex, amending the Manual for Courts-Martial.

Four things, in order. Trial counsel arranges the defence’s witnesses by default, so the burden of objecting sits on the Government rather than on the accused. An objection goes to the military judge. The defence may make its submission ex parte for good cause shown, which matters because an ordinary motion would disclose the defence’s theory. And if the judge grants the motion, the consequence of non-production is stated: “the trial counsel shall produce the witness or the proceedings may be abated.”

Getting an expert. A grant is not the end of the question.

“(B) If the military judge grants a motion for the appointment or employment of a defense expert witness or consultant, the expert witness or consultant, or an adequate substitute, shall be provided in accordance with regulations prescribed by the Secretary concerned.”

Source: Executive Order 14130, 20 December 2024, Annex, amending the Manual for Courts-Martial.

“Or an adequate substitute” is the phrase to notice. A granted motion entitles the defence to expertise, not necessarily to the named person.

Unreasonable multiplication of charges, when the remedy is the sentence. This is the rule that connects a pretrial argument to what a sentence looks like.

“(B) As applied to sentence. Where the military judge finds that the unreasonable multiplication of charges requires a remedy that focuses more appropriately on”

Source: Executive Order 14130, 20 December 2024, Annex, amending the Manual for Courts-Martial. Only the opening of this subparagraph was obtained in a form clean enough to quote; its operative remedy is stated below from R.C.M. 1002(b)(2), which the same order also amended.

The remedy the two rules produce together is concrete: where the multiplication is addressed at the sentence, the terms of confinement for the affected specifications run concurrently, and that is set out on what a conviction costs.

What this page cannot contain, and why

The grounds, timing, form and waiver rules for motions are in the Rules for Courts-Martial, and the suppression grounds beyond Article 31 are in the Military Rules of Evidence. Both are in the Manual for Courts-Martial, which was not opened; four access routes were tried on 19 September 2026 and each returned an HTTP 403 refusal.

So no rule is cited here by number, no filing deadline is stated, and no waiver consequence is described. The title names three kinds of motion; what this page gives is the statutory ground each one attaches to and the forum in which it is heard.

What this page does not decide

Whether any motion is available or timely in a particular case. Deadlines and waiver rules are in the Manual.

Whether a statement can be suppressed. Article 31(d) states a rule; applying it requires evidence about how the statement was obtained.

Whether a defect requires dismissal. The Code creates conditions; the remedy for a breach is decided in the case.

Where to go from here

Everything that happens before these motions are argued is in what happens before a court-martial, and the first courtroom session itself is arraignment. The evidentiary rulebook that supplies most suppression grounds is in the military rules of evidence.

Sources

What this page did not open. The Manual for Courts-Martial was not opened. The rule numbers above are named as the Army’s deskbook names them, and the short phrases are the deskbook’s wording rather than the text of any rule; no Rule for Courts-Martial is quoted here, no timing requirement is stated, and no waiver consequence is described. Therefore no Military Rule of Evidence is cited here. No court decision was opened, including on unlawful command influence, where the case law is substantial.

Checked on 19 September 2026, and checked for currency as well as for accuracy. Every statutory provision cited on this page was traced to the current United States Code: where a provision has not been amended since the 2023 edition, that edition’s text is the current text and its amendment record was read to confirm it; where a provision was amended by Pub. L. 118–159 (23 December 2024) or Pub. L. 119–60 (18 December 2025), the current text is quoted above and the amending Act is named beside it. The two Acts’ own texts were read to establish the complete list of provisions in this chapter that they changed. This was done through the Cornell mirror of the Code and through the Acts as published by the Government Publishing Office; the House preliminary Code could not be reached from here, so no third source confirms it. No independent expert review has taken place yet, and this page says so rather than implying one.

Leave a comment

Your email address will not be published. Required fields are marked *