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TIME TO FILE PRETRIAL MOTIONS

FED. R. CRIM. P. Rule 12(c) provides that “unless provided by local rule,” the trial court has discretion as to the particular time “for the making of pretrial motions,” and, where required, a date for hearing of same. FED. R. CRIM. P. Rule 12(b) expressly requires that the following matters “must be raised prior to trial,” or they may be waived.

  1. defenses and objections based on defects in the institution of the prosecution; or
  2. defenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge and offense, which objections shall be noticed by the court at any time during the pendency of the proceedings); or
  3. motions to suppress evidence; or
  4. requests for discovery under Rule 16; or
  5. requests for a severance of charges or defendants under Rule

Most jurisdictions have adopted a local rule similar to Local Rule CR12, Local Rules for the United States District Court for the Western District of Texas, requiring that pretrial motions be filed within ten days of arraignment.

Failure to timely file pretrial motions, even those raising constitutional issues may constitute waiver of those issues. Small v. US, 391 F.2d 764 (5th Cir. 1968) (noting refusal to consider suppression motion filed day of trial); US v. Reyes, 280 F. Supp. 267 (S.D.N.Y. 1968); US. v. Barker, 495 F.2d 327 (9th Cir. 1971). However, where the trial court considers same it will be considered timely on appeal. Glisson v. US, 406 F.2d 423 (5th Cir. 1969), overruled on other grounds by U.S. v. Johnson, 431 F.2d 441 (5th Cir. 1970); US v. Seary, 432 F.2d 395 (5th Cir. 1970).

Some matters must be raised within specified time frames expressly set out in the rule.

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