Rule 12: Pleadings and Motions Before Trial; Defenses and Objections.



(a) Pleadings and Motions. Pleadings in criminal proceedings are the indictment, presentment, and information, and the pleas of not guilty, guilty, and nolo contendere. All other pleas, demurrers, and motions to quash are abolished; defenses and objections raised before trial that could have been raised by one or more of them are now raised only by motion to dismiss or to grant appropriate relief, as provided in these rules. Motions may be oral or written, at the discretion of the judge.

(b) Pretrial Motions.

(1) Motions That May Be Made Before Trial. A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.

(2) Motions That Must Be Made Before Trial. The following must be raised before trial:

(A) a motion alleging a defect in the institution of the prosecution;

(B) a motion alleging a defect in the indictment, presentment, or information–but at any time while the case is pending, the court may hear a claim that the indictment, presentment, or information fails to show jurisdiction in the court or to charge an offense;

(C) a motion to suppress evidence;

(D) a Rule 16 request for discovery; and

(E) a Rule 14 motion to sever or consolidate charges or defendants.

(c) Motion Date. Unless otherwise provided by local rule, the court may–at the arraignment or as soon afterward as practicable–set a deadline for the parties to make pretrial motions or requests and may also schedule a motion hearing.

(d) Notice by the State of the Intention to Use Evidence.

(1) At the State’s Discretion. At the arraignment or as soon afterward as practicable, the state may notify the defendant of its intent to use specified evidence at trial in order to afford the defendant an opportunity to object before trial under Rule 12(b)(2)(C).

(2) At the Defendant’s Request. At the arraignment or as soon afterward as practicable, in order to afford an opportunity to move to suppress evidence the defendant may request notice of the state's intent to use (in its evidence in chief at trial) any evidence that the defendant may be entitled to discover under Rule 16, subject to any relevant limitations prescribed in Rule 16.

(e) Ruling on Motion.  The court shall decide each pretrial motion before trial unless it finds good cause to defer a ruling until trial or after a verdict. The court shall not defer ruling on a pretrial motion if the deferral will adversely affect a party's right to appeal. When factual issues are involved in deciding a motion, the court shall state its essential findings on the record.

(f) Effect of Failure to Raise Defenses or Objections. Unless the court grants relief for good cause, a party waives any defense, objection, or request by failing to comply with:

(1) rules requiring such matters to be raised pretrial;

(2) any deadline set by the court under Rule 12(c); or

(3) any deadline extension granted by the court.

(g) Records. A verbatim record shall be made of all proceedings at the motion hearing, including any findings of fact and conclusions of law that are made orally.

(h) Effect of Decision on Motion.

(1) Confinement. If the court grants a motion based on a defect in the institution of the prosecution or in the indictment, presentment, or information, it may also order that the defendant be continued in custody or that the defendant's bail be continued for a specified time pending the filing of a new indictment or information.

(2) Statute of Limitations. Nothing in this rule affects the provisions of any statute of limitations.

Advisory Commission Comment.

This rule conforms to its federal counterpart and applies only in criminal courts of record.

The verbatim record referred to in section (g) means that the proceedings must be electronically (or in some other way) preserved, and does not necessarily mean that a written transcript must be prepared before it is needed for purposes of appeal or otherwise.

The state is also permitted to make appropriate pretrial motions under this rule.

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