In criminal trials, both the government and the defense have the right to file numerous different pretrial motions. As the title of the filing indicates, it requests to move the court to take an action.

Pretrial motions are filed before a case goes to trial. Although some pretrial motions may be made verbally and in open court, many are required to be in writing and sent to the other side, which allows the other party time to respond.

A pretrial motion in a criminal case is typically filed after the preliminary hearing or indictment. There are different types of pretrial motions to dismiss in a criminal case, including a motion for dismissal of charges or a motion to drop charges.

What Is a Motion to Dismiss?

A motion to dismiss is a request made by the defendant for the court to throw out the charges against them because of some issue. A motion to dismiss differs from pleading not guilty and wanting the court to dismiss the charges because an individual did not commit the crime alleged.

Instead, a motion to dismiss argues to the court that the government or the party that is bringing the case:

  • Failed to follow a procedure that was required by law;
  • Made a mistake in the charging documents;
  • Violated the defendant’s rights in such a way that warrants a dismissal; or
  • The case is barred because the statute of limitations has lapsed.

Examples of motions that may address these issues include:

  • A motion to dismiss for insufficient evidence;
  • A motion to dismiss for lack of evidence; and
  • A motion to dismiss charges.

It is important to note that jurisdictions may differ regarding when these types of motions are required to be filed before the trial and in what form they must be presented to the court.

What Do I Need in Order to File a Motion to Dismiss?

There may be several grounds used for a motion to dismiss. In order for a motion to be considered, the party must include a legal reason for the dismissal.

Examples of common grounds for the dismissal of criminal charges include:

  • Lack of jurisdiction: Only the state where the crime occurred has jurisdiction to proceed with a criminal case against the defendant. If the crime allegedly occurred in Mississippi but the state of Georgia arrests and attempts to prosecute the defendant in Georgia, the defendant should be able to have the case thrown out;
  • Lack of evidence: The government must provide sufficient facts to show that the allegations meet all of the elements that are required for the particular crime charged;
    • If the prosecution missing one element or it lacks sufficient evidence to proceed, the court may grant a dismissal;
  • Statute of limitations: Many crimes have a time period in which the prosecution must file charges. If the government fails to file charges against the defendant within the timeframe provided in the statute of limitations, the case may be dismissed;
  • Lack of due process: If the government and its agents, such as police officers, violate the defendant’s right to due process, then the charges may be dismissed;
  • Violation of speedy trial right: If the government delays the proceedings to such an extent that it violates the defendant’s right to a speedy trial, the case may be dismissed; or
  • Defective charging document: The government must include specific language in the written charging document such as specific dates and locations of what the defendant is accused of. Any failures to provide these details may be cause for a dismissal.

What Should Be Included in a Pretrial Motion to Dismiss?

A pretrial motion to dismiss must be written and must follow any local rules and requirements regarding written motions to the court. The motion should outline, as clearly as possible, one or more grounds why the case should be dismissed.

If there are any relevant case laws or statutes that support the individual’s claim, they should include proper citations. They should be as specific as possible and provide the court with copies of the government filings as well as any other evidence that demonstrates the grounds for the dismissal.

What Happens After I File My Motion to Dismiss?

Once an individual files and serves their motion on the other party, the court will most likely provide the other party with the opportunity to respond to the motion. Then, the court will schedule a hearing date for both sides to present their arguments.

If the court denies the motion, the case against the individual will continue. Depending on the outcome of the other pretrial motions regarding admissible evidence or the discovery of evidence against the defendant, the defendant may be able to file another motion to dismiss based on the new information.

If the motion to dismiss is granted, the charges will be thrown out. Depending on why the case was dismissed, however, the government may be permitted to refile the charges against the defendant after correcting the issue that caused the dismissal.

What Does it Mean When a Case Is Dismissed?

A dismissal may occur at any time prior to a case being submitted to a court or a jury for a decision. A dismissal may occur by motion, as discussed above, or when the prosecution dismisses the criminal charges against a defendant and does not proceed further with the prosecution of the case.

In a trial, the guilt or innocence of the defendant will be determined by a jury or by the judge if the defendant chooses to have their case decided by the judge. If a trial does not occur, the issue of guilt is not decided because the judge or jury does not determine the guilt or innocence of the defendant.

Because of this, if a dismissal occurs, an acquittal is not possible and the prosecution may decide to refile the charges and pursue the prosecution of the defendant at a later time.

What Are the Consequences of a Dismissal?

An acquittal, or not guilty verdict, means that it was determined by the judge or jury that the prosecution did not prove beyond a reasonable doubt that the defendant committed the crime of which they were charged as a matter of law. If an acquittal occurs, the prosecution is not permitted to charge the defendant again based on the same crime and the same set of facts.

If the case is dismissed, however, prior to a verdict being reached, it may be possible for the prosecution to resume the case at a later time, as noted above. In addition, because the issue of the defendant’s guilt or innocence was not decided, the judge or jury does not have the opportunity to determine guilt or innocence.

The only issue decided following a dismissal is that the prosecution of the case will not go forward.

Should I Hire a Criminal Attorney?

Any time you are charged with a crime, it is important to consult with a criminal lawyer. Criminal charges can be serious and you may be facing a lengthy jail sentence and hefty fines.

Drafting and filing a pretrial motion may be complex. Your lawyer can help make the best argument for dismissal using their knowledge and experience.

If a pretrial motion is successful, it may help you avoid the embarrassing and harmful effects that may occur to your family and reputation before a trial begins. In addition, your lawyer can explain your rights throughout the legal process and represent you in court.