More Categories

Section 47 – Motions and Supporting Affidavits

May 8, 2021 | Criminal Procedure, Federal

(a) IN GENERAL. A party applying to the court for an order must do so by motion.
(b) FORM AND CONTENT OF A MOTION. A motion-except when made during a trial or hearing-must be in writing, unless the court permits the party to make the motion by other means. A motion must state the grounds on which it is based and the relief or order sought. A motion may be supported by affidavit.
(c) TIMING OF A MOTION. A party must serve a written motion-other than one that the court may hear ex parte-and any hearing notice at least 7 days before the hearing date, unless a rule or court order sets a different period. For good cause, the court may set a different period upon ex parte application.
(d) AFFIDAVIT SUPPORTING A MOTION. The moving party must serve any supporting affidavit with the motion. A responding party must serve any opposing affidavit at least one day before the hearing, unless the court permits later service.

18 APPENDIX U.S.C. ยง 47

As amended Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec. 1, 2009.

NOTES OF ADVISORY COMMITTEE ON RULES-1944 1. This rule is substantially the same as the corresponding civil rule (first sentence of Rule 7(b)(1), Federal Rules of Civil Procedure) [28 U.S.C., Appendix], except that it authorizes the court to permit motions to be made orally and does not require that the grounds upon which a motion is made shall be stated “with particularity,” as is the case with the civil rule. 2. This rule is intended to state general requirements for all motions. For particular provisions applying to specific motions, see Rules 6(b)(2), 12, 14, 15, 16, 17(b) and (c), 21, 22, 29 and Rule 41(e). See also Rule 49.3. The last sentence providing that a motion may be supported by affidavit is not intended to permit “speaking motions” (e.g. motion to dismiss an indictment for insufficiency supported by affidavits), but to authorize the use of affidavits when affidavits are appropriate to establish a fact (e.g. authority to take a deposition or former jeopardy).

COMMITTEE NOTES ON RULES-2002 AMENDMENT The language of Rule 47 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below.In Rule 47(b), the word “orally” has been deleted. The Committee believed, first, that the term should not act as a limitation on those who are not able to speak orally and, second, a court may wish to entertain motions through electronic or other reliable means. Deletion of the term also comports with a similar change in Rule 26, regarding the taking of testimony during trial. In place of that word, the Committee substituted the broader phrase “by other means.”

COMMITTEE NOTES ON RULES-2009 AMENDMENT The time set in the former rule at 5 days, which excluded intermediate Saturdays, Sundays, and legal holidays, has been expanded to 7 days. See the Committee Note to Rule 45(a).