Rule 15.6 Motion for pre-trial determination of admissibility of evidence.

Committee Comments

Ordinarily, a motion to suppress may be used only to test the admissibility of evidence alleged to have been illegally seized. Section (a) deals with this kind of motion.

The admissibility of evidence such as confessions and line-up identifications in prior practice generally could not be determined by the traditional motion to suppress, and these questions were argued at trial out of the presence of the jury. Section (b) provides a method of dealing with such matters before trial. Section (b) allows, but does not require, the court to order a question of admissibility to be submitted for pretrial determination. In making its determination, the court shall proceed as if a motion to suppress the evidence had been filed by the party opposed to the introduction of the evidence.

Section (b) allows a party to ask the court to require the other party to challenge his evidence before trial or else waive the right to have the evidence excluded at trial. Thus, the state can petition the court for an order submitting the question of the admissibility of a line-up identification for pre-trial determination. If the court in its discretion grants the order and defense counsel fails to challenge the line-up identification, he cannot later make such a challenge at trial.

This rule should result in an increased efficiency in the conduct of criminal trials. It gives the state a means of determining at a pre-trial level the admissibility of evidence.

Section (e) preserves the court’s power on motion in limine to prevent parties, witnesses, or attorneys from bringing before the jury, by indirection or otherwise, any inadmissible fact, matter, or circumstance. Although such motions generally are made before trial, there is no reason why, when appropriate, they could not as well be made after commencement of the trial.