TITLE TWO — PRELIMINARY PROCEEDINGS
Rule 13. Pretrial Motions
In General.
Requirement of Writing and Signature; Waiver. A pretrial motion shall be in writing and signed by the party making the motion or the attorney for that party. Pretrial motions shall be filed within the time allowed by subdivision (d) of this rule. A motion transmitted through the electronic filing system is signed by the electronic signature of the account holder who transmitted it, as provided by Rule 32; that signature is the declaration of the account holder, and the authenticated account is the anchor of attribution.
Grounds and Affidavit. A pretrial motion shall state the grounds on which it is based and shall include in separately numbered paragraphs all reasons, defenses, or objections then available, which shall be set forth with particularity. If there are multiple charges, a motion filed pursuant to this rule shall specify the particular charge to which it applies. Grounds not stated which reasonably could have been known at the time a motion is filed shall be deemed to have been waived, but a judge for cause shown may grant relief from such waiver. In addition, an affidavit detailing all facts relied upon in support of the motion and signed by a person with personal knowledge of the factual basis of the motion shall be attached.
Service and Notice. A copy of any pretrial motion and supporting affidavits shall be served on all parties or their attorneys through proceeding communications. Service of a motion filed in the case is also effected by the electronic filing system upon the Clerk’s acceptance of the filing, as provided by Rule 32; no certificate of service is required and no acknowledgment of receipt is required. Opposing affidavits shall be served not later than one day before the hearing. For cause shown the requirements of this subdivision (3) may be waived by the court.
Memoranda of Law. The judge or special magistrate may require the filing of a memorandum of law, in such form and within such time as he or she may direct, as a condition precedent to a hearing on a motion or interlocutory matter. No motion to suppress evidence, other than evidence seized during a warrantless search, and no motion to dismiss may be filed unless accompanied by a memorandum of law, except when otherwise ordered by the judge or special magistrate.
Renewal. Upon a showing that substantial justice requires, the judge or special magistrate may permit a pretrial motion which has been heard and denied to be renewed. A renewed motion shall state what has changed since the original ruling — a new fact, newly disclosed discovery, a change in the charges, or an intervening decision — and shall attach an affidavit as required by subdivision (a)(2). A renewed motion that states no such change may be denied without hearing.
Contents of a Motion. Every pretrial motion shall contain:
a caption stating the name of the court, the title of the case, and the case number assigned by the electronic filing system;
a title identifying the relief sought and, if there are multiple charges, the charge or charges to which it applies;
a concise statement of the relief requested;
the grounds, in separately numbered paragraphs, as required by subdivision (a)(2);
the affidavit required by subdivision (a)(2);
the memorandum of law required by subdivision (a)(4), where one is required; and
the signature required by subdivision (a)(1).
Form; Rejection. The electronic filing system validates no matter of form at intake. Non-compliance with subdivision (a)(6) is a ground for rejection of the filing by the Clerk in the Clerk’s judgment, and nothing more; a document prepared through the court’s document builder satisfies the requirements of form. The system enforces a limit of fifty megabytes upon each document; there is no limit upon the number of documents comprising a filing.
Opposition; Reply. A party opposing a pretrial motion shall file an opposition, with any opposing affidavit, not later than one day before the hearing, as subdivision (a)(3) provides. A reply may be filed only with leave of the judge. Failure to oppose is not an assent to the motion, and the judge shall not allow a motion solely because it is unopposed.
Waiver of Grounds Not Raised. A defense, objection, or request which is capable of determination before trial and which is not raised by a pretrial motion filed within the time allowed by subdivision (d) is waived. A judge may grant relief from waiver for cause shown, upon a motion stating the reason the ground was not timely raised and the prejudice, if any, to the adverse party. The following are not waived by failure to raise them before trial and may be raised at any time while the case is pending: that the court lacks jurisdiction of the offense; that the charging instrument charges no offense; and that the prosecution is barred by former jeopardy.
Correction of a Defective Motion. A filing once received by the electronic filing system cannot be amended or withdrawn. A party who wishes to correct a motion shall file a corrected motion, which bears its own filing date and supersedes the earlier motion; the earlier motion remains upon the docket and shall be denied as superseded. Where the earlier motion was timely and the corrected motion is not, the judge may treat the corrected motion as filed for the purpose of subdivision (d) upon a showing that the defect was formal and the correction prompt.
Withdrawal of a Motion. A party may withdraw a pretrial motion by notice stated in the proceeding communications or by a filing. Withdrawal does not remove the motion from the docket; the judge shall note the withdrawal upon the record and the motion shall be denied as withdrawn. A ground stated in a withdrawn motion is preserved only if re-raised within the time allowed by subdivision (d).
Ex Parte Motions. A motion to be heard ex parte in a pending criminal case is filed in that case. The electronic filing system provides no document-level sealing; upon acceptance the filing is served upon every participant and, on a case type that is not confidential, appears upon the public docket. A party who requires that an application not be disclosed to an adverse party shall proceed through the workflow provided for ex parte matters and shall not file the application in the criminal case. A judge shall not receive an ex parte communication concerning a pending matter except as authorized by law.
Sensitive Information. The electronic filing system provides no redaction. A party shall not include in a motion, an affidavit, or an exhibit any material that is not necessary to the relief sought and whose disclosure would endanger a person or defeat an ongoing investigation. Protection is obtained by an order under Rule 14(a)(6) binding named persons, enforceable by contempt, and by the Clerk’s rejection of a non-compliant filing; it is not obtained by sealing a document.
Fees. A fee is assessed upon the filing of a motion. Non-payment blocks nothing: the motion is filed, docketed, served, and decided without regard to payment, and an unpaid fee is a debt collectible as provided by law. No judge shall decline to hear a motion, and no Clerk shall reject a filing, for non-payment of a fee.
Bill of Particulars.
Motion. Within the time provided for the filing of pretrial motions by this rule or within such other time as the judge may allow, a defendant may request or the court upon its own motion may order that the prosecution file a statement of such particulars as may be necessary to give both the defendant and the court reasonable notice of the crime charged, including time, place, manner, or means.
Amendment. If at trial there exists a material variance between the evidence and bill of particulars, the judge may order the bill of particulars amended or may grant such other relief as justice requires.
Standard. A bill of particulars is granted to give notice of the crime charged, not to obtain discovery, to compel disclosure of the State’s evidence or theory, or to obtain the names of witnesses. Discovery is governed by Rule 14.
Time to Comply. Where the court orders a bill of particulars, the prosecution shall file it within forty-eight hours, or within such other period as the court orders. A bill of particulars shall be filed in the case.
Motion to Dismiss or to Grant Appropriate Relief.
All defenses available to a defendant by plea, other than not guilty, shall only be raised by a motion to dismiss or by a motion to grant appropriate relief.
A defense or objection which is capable of determination without trial of the general issue shall be raised before trial by motion.
Grounds. A motion to dismiss or for appropriate relief may be founded upon, without limitation:
that the court lacks jurisdiction of the offense or of the defendant;
that the charging instrument fails to comply with Rule 4(a) or charges no offense known to the law;
that the prosecution is barred by former jeopardy, by a grant of immunity as provided by 6 R. Stat. § 131.303, or by any other bar to prosecution provided by law;
that the indictment was returned by a grand jury not constituted or not proceeding as required by 6 R. Stat. §§ 131.101 through 131.110, or upon a challenge permitted by 6 R. Stat. § 131.104;
that the defendant has been denied a speedy trial as provided by 6 R. Stat. § 131.305 and Rule 19;
that the prosecution or the investigation was conducted in a manner that so prejudiced the defendant that dismissal is the only adequate remedy;
that the defendant is entitled to relief upon any other ground for which no other procedure is provided by these rules.
Determination; Findings. The judge shall state findings of fact and conclusions of law upon the record. A motion the determination of which may be appealed under Rule 15 shall be decided before the defendant is placed in jeopardy.
Effect of an Order of Dismissal. An order dismissing a charging instrument or a count states whether the dismissal is with or without prejudice; if the order is silent, the dismissal is without prejudice. A dismissal without prejudice does not bar a new charging instrument, which is a new filing bearing its own filing date and, where a new case is opened, a new case number.
Appeal by the State. The State has the right to appeal from an order granting a motion under this subdivision, as provided by Rule 15(a)(1) and 6 R. Stat. § 131.805.
Filing. Only pretrial motions the subject matter of which could not be agreed upon at the pretrial conference shall be filed with the court.
Discovery Motions. Any discovery motions shall be filed prior to the conclusion of the pretrial hearing, or thereafter for good cause shown. A discovery motion filed after the conclusion of the pretrial hearing shall be heard and considered only if (A) the discovery sought could not reasonably have been requested or obtained prior to the conclusion of the pretrial hearing, (B) the discovery is sought by the State, and the State could not reasonably provide all discovery due to the defense prior to the conclusion of the pretrial hearing, or (C) other good cause exists to warrant consideration of the motion.
Non-discovery Pretrial Motions. A pretrial motion which does not seek discovery shall be filed before the assignment of a trial date pursuant to Rule 11(b) or (c) or within forty-eight hours thereafter, unless the court permits later filing for good cause shown.
When a Motion Is Filed. A motion is filed when the electronic filing system has received every document comprising the filing. A filing that remains incomplete has been tendered but not filed. Time under this rule runs continuously in coordinated universal time from the recorded event; there are no court days, no filing cutoff hour, and no holidays. The electronic filing system computes no deadline and gives no notice of one; every period fixed by this rule is self-executing and is enforced upon motion.
Motions Not Subject to the Time Limits. The grounds preserved by subdivision (a)(9) may be raised at any time while the case is pending. A motion for severance upon a ground not previously known is governed by Rule 9(d)(2). A motion in limine addressed to the admissibility of evidence at trial may be filed at any time before the evidence is offered, subject to the judge’s power to require earlier filing.
Late Filing. A motion filed after the period allowed by this subdivision shall state the cause for the delay. The judge may hear it for good cause shown, and shall state upon the record the effect of hearing it upon the trial date, upon the period prescribed by Rule 46(a), and upon Rule 19.
Hearing on Motions. The parties shall have a right to a hearing on a pretrial motion. The opposing party shall be afforded an adequate opportunity to prepare and submit a memorandum of law prior to the hearing.
Discovery Motions. All pending discovery motions shall be heard and decided before the commencement of trial and, in a prosecution for treason in which a jury has been demanded under 6 R. Stat. § 131.111, before the empanelment of the jury. Any discovery matters pending at the time of the pretrial hearing or the compliance hearing shall be heard at that hearing. Discovery motions filed pursuant to subdivision (d)(1) thereafter shall be heard and decided expeditiously.
Non-Discovery Pretrial Motions. A non-discovery motion filed prior to the pretrial hearing may be heard at the pretrial hearing, at a hearing scheduled to address the motion, or at the trial session.
Evidence. Testimony at a hearing upon a pretrial motion shall be given under oath. The rules of evidence apply, except as Rid. R. Evid. 104 provides for preliminary questions. A party who relies upon a document shall file it in the case or present it upon the record.
Rulings; Findings. The judge shall rule upon each pretrial motion before trial unless the judge defers the ruling for stated reasons. A ruling announced upon the record is effective when announced. Where a ruling may be appealed under Rule 15, the judge shall make all findings of fact relevant to the appeal within the period fixed by Rule 15(b)(1).
Special Magistrates. A special magistrate assigned to conduct pretrial proceedings may hear and determine only non-dispositive matters. A special magistrate shall not hear, determine, or enter any order upon a dispositive matter, including a motion to dismiss and a motion to suppress, unless the judge refers the matter for proposed findings, a report, and recommendations; and no such report and recommendation has effect unless adopted, modified, or rejected by the judge. 3 R. Stat. § 131.203.
Failure to Appear. If the moving party fails without cause to appear at a hearing set upon the party’s motion, the judge may deny the motion. If the opposing party fails without cause to appear, the judge may hear the motion in that party’s absence. Counsel who fails without cause to appear is subject to sanction under Rule 48.
General Provisions Applicable to All Motions.
Motions Heard in the Proceeding Communications. Unless the judge orders that a matter be heard in-game or at court, every hearing upon a pretrial motion shall be conducted in the proceeding communications of the case. For that purpose the proceeding communications constitute open court: argument, testimony, objections under Rule 22, rulings, and findings made there are made upon the record and have the same effect as if made in a courtroom. The judge shall state upon the record the opening and the close of each hearing.
Oral Motions. A motion made during a hearing or during trial may be made orally upon the record. The judge may require that an oral motion be reduced to writing and filed, and shall so require where the motion seeks relief that a written order must implement. An oral motion made and ruled upon in the proceeding communications is not defective for want of a filing.
Decorum. Counsel shall address argument to the judge and not to opposing counsel, shall not interrupt the judge or an adverse speaker, shall speak only when recognized, and shall not communicate in the proceeding communications concerning a pending matter outside the presence of an adverse party. A party appearing without counsel is held to the same standard.
Motions in Restricted and Workflow-Owned Matters. The general filing channel is closed to matters of a confidential type, including search warrant, arrest warrant, bench warrant, and ex parte matters, and to expungement and charging matters, each of which proceeds through its own workflow. A motion addressed to such a matter shall be filed in the criminal case to which it relates, or made through the workflow that owns the matter. Relief addressed to a warrant is governed by Rule 13.1 and Rule 44.