Effective December 1, 2014
The former Federal Rule of Criminal Procedure 12(b)(3) stated that a party must make the following motions before trial: a motion alleging defect in instituting the prosecution, a motion alleging defect in the indictment or information, a motion to suppress, a Rule 14 motion to sever charges or defendants, and a Rule 16 motion for discovery. Fed. R. Crim. P. 12(b)(3) (amended December 1, 2014). Motions alleging defect in the indictment or information could be made at any time while the case was pending in order to invoke the court’s jurisdiction or state an offense. Id.
The Advisory Committee’s amendment to Rule 12(b)(3), now clarifies that the five categories of motions set out in the former rule 12(b)(3), must be raised before trial if the issue can be decided without a trial “on the merits” and if the basis for the motion is readily available. The new language also provides specific examples of motions for a defect in instituting the prosecution and a defect in the indictment or information. Motions claiming a defect in instituting the prosecution, include improper venue, preindictment delay, a violation of the constitutional right to a speedy trial, selective or vindictive prosecution, and an error in the grand-jury proceeding or preliminary hearing. Defects in the indictment or information includes joining two or more offenses in the same count, charging the same offense in more than one count, lack of specificity, improper joinder, and failure to state an offense. The Committee only made stylistic changes to the other three categories of suppression of evidence, Rule 14 severance of charges or defendants, and Rule 16 discovery motions.
The Committee indicated the “then reasonably available” language in the amendment was intended to ensure a claim that could not have been raised on time by a party would not be subject to the strict limitation on review in 12(c)(3). The old “trial on the general issue” language was deemed too archaic, but the meaning remains the same with “on the merits.” Additionally, the lists of motions under “a defect in instituting the prosecution” and “errors in indictment or information” are not meant to be exclusive; neither are they meant to supersede statutes that implement a time to make specific motions. Rule 12(b)(3)(B) has also been amended to prohibit a court from hearing claims about errors in the indictment or information at any time while the case is pending, unless the claim is that the defect fails to invoke the court’s jurisdiction or state an offense. Prior to the Committee’s amendment, this particular charging error was considered fatal when raised. Further, the error was excluded from the general requirement that charging deficiencies be raised prior to trial. In United States v. Cotton, the Court determined that jurisdiction did not have the same meaning as it did in 1887, and concluded that the Court’s constitutional and statutory power to hear a case can never be waived or forfeited. 535 U.S. 625 (2002). Therefore, defects in an indictment could not deprive a Court of its power to hear a particular case.