After a defendant has been charged with a crime and the judge has determined that the case will go to trial, the prosecution and the defense can bring motions before the court. A motion is a document filed with the court by one of the parties asking the court to do something.
Pretrial motions are made by the prosecution and criminal defense lawyer to set boundaries for the pending trial. The acceptable use of evidence, legal arguments and witnesses at trial are established by the judge's granting or denying pretrial motions. A successful pretrial motion can result in the case being reduced or sometimes even dismissed.
Motion to Dismiss in General
A motion to dismiss is a common pretrial motion. The party making the motion to dismiss is claiming the parties don't disagree on any of the important facts and the law requires that the charge or complaint be dismissed. This motion asks the court to dismiss the suit either because it lacks a legally sound basis even if all the facts alleged are proven true or because the statute of limitations has expired.
Requirements of Motion to Dismiss
A motion to dismiss must be made in writing and state there are no material disputed facts and the undisputed facts either don't establish guilt or they do establish a complete defense.
The attorney can cite to police reports, affidavits and depositions under oath to support the motion to dismiss. It must be sworn to under oath by the defendant or by someone with personal knowledge. All defenses available by plea, other than not guilty, must be raised by a motion to dismiss whether they relate to matters of form, substance, former acquittal, former jeopardy, not guilty by reason of insanity or any other defense.
Grounds for Motion to Dismiss
In order to properly file a motion to dismiss, there must be clear grounds to support it. Specific grounds include:
- Failure to state a claim
- Defendant wasn't properly served
- Action brought in wrong place
- Court lacks jurisdiction or authority to hear the case
The state can file a response outlining the disputed facts. If it shows there is a factual dispute, the motion to dismiss will be denied The trial will go on, and the jury will decide.
Attached to each pretrial motion should be an order for the judge to sign. If the court grants the motion to dismiss, he will sign the order and the claim will be dismissed without any evidence being presented by the other side.
Questions for Your Attorney
- When can a motion to dismiss be filed with the court?
- What grounds are a sufficient basis for a motion to dismiss?
- Must an order for the judge be attached to a motion to dismiss?