Rule 12 — Pleadings and Pretrial Motions

Fed. R. Crim. P. 12

• Source: Federal Rules of Criminal Procedure
• Rule: 12
• TITLE IV: ARRAIGNMENT AND PREPARATION FOR TRIAL
• Citation: Fed. R. Crim. P. 12

Text

(a) Pleadings. The pleadings in a criminal proceeding are the in-
dictment, the information, and the pleas of not guilty, guilty, and
nolo contendere.
(b) Pretrial Motions.
(1) In General. A party may raise by pretrial motion any de-
fense, objection, or request that the court can determine with-
out a trial on the merits. Rule 47 applies to a pretrial motion.
(2) Motions That May Be Made at Any Time. A motion that
the court lacks jurisdiction may be made at any time while
the case is pending.
(3) Motions That Must Be Made Before Trial. The following
defenses, objections, and requests must be raised by pretrial
motion if the basis for the motion is then reasonably available
and the motion can be determined without a trial on the mer-
its:
(A) a defect in instituting the prosecution, including:
(i) improper venue;
(ii) preindictment delay;
(iii) a violation of the constitutional right to a
speedy trial;
(iv) selective or vindictive prosecution; and
(v) an error in the grand-jury proceeding or prelimi-
nary hearing;
(B) a defect in the indictment or information, including:
(i) joining two or more offenses in the same count
(duplicity);
(ii) charging the same offense in more than one
count (multiplicity);
(iii) lack of specificity;
(iv) improper joinder; and
(v) failure to state an offense;
(C) suppression of evidence;
(D) severance of charges or defendants under Rule 14; and
(E) discovery under Rule 16.
(4) Notice of the Government’s Intent to Use Evidence.
(A) At the Government’s Discretion. At the arraignment or
as soon afterward as practicable, the government may no-
tify the defendant of its intent to use specified evidence at
Rule 12.1 FEDERAL RULES OF CRIMINAL PROCEDURE 20
trial in order to afford the defendant an opportunity to ob-
ject before trial under Rule 12(b)(3)(C).
(B) At the Defendant’s Request. At the arraignment or as
soon afterward as practicable, the defendant may, in order
to have an opportunity to move to suppress evidence under
Rule 12(b)(3)(C), request notice of the government’s intent
to use (in its evidence-in-chief at trial) any evidence that
the defendant may be entitled to discover under Rule 16.
(c) Deadline for a Pretrial Motion; Consequences of Not Making
a Timely Motion.
(1) Setting the Deadline. The court may, at the arraignment
or as soon afterward as practicable, set a deadline for the par-
ties to make pretrial motions and may also schedule a motion
hearing. If the court does not set one, the deadline is the start
of trial.
(2) Extending or Resetting the Deadline. At any time before
trial, the court may extend or reset the deadline for pretrial
motions.
(3) Consequences of Not Making a Timely Motion Under Rule
12(b)(3). If a party does not meet the deadline for making a
Rule 12(b)(3) motion, the motion is untimely. But a court may
consider the defense, objection, or request if the party shows
good cause.
(d) Ruling on a Motion. The court must decide every pretrial mo-
tion before trial unless it finds good cause to defer a ruling. The
court must 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 must state its essen-
tial findings on the record.
(e) [Reserved]
(f) Recording the Proceedings. All proceedings at a motion hear-
ing, including any findings of fact and conclusions of law made
orally by the court, must be recorded by a court reporter or a suit-
able recording device.
(g) Defendant’s Continued Custody or Release Status. If the
court grants a motion to dismiss based on a defect in instituting
the prosecution, in the indictment, or in the information, it may
order the defendant to be released or detained under 18 U.S.C.
§3142 for a specified time until a new indictment or information
is filed. This rule does not affect any federal statutory period of
limitations.
(h) Producing Statements at a Suppression Hearing. Rule 26.2 ap-
plies at a suppression hearing under Rule 12(b)(3)(C). At a suppres-
sion hearing, a law enforcement officer is considered a govern-
ment witness.

Advisory Committee Notes

(As amended Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94–64, §3(11), (12), July 31, 1975, 89 Stat. 372, eff. Dec. 1, 1975; Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2014, eff. Dec. 1, 2014.)