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Filing a Pretrial Motion to Dismiss

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What Is a Pretrial Motion?

The prosecution and defense are allowed to bring pretrial motions once a defendant has been charged with a crime and the judge determines that the case will be going to trial. Generally speaking, a motion is a document that either party files with the court requesting the court to take certain actions, such as admitting a piece of evidence.

Pretrial motions are filed before the criminal case formally begins, and therefore they have the potential to shape the outcome of the pending case. A successfully pled motion may set the boundaries for the upcoming trial with regards to use of evidence, witness testimonies, and legal arguments.

What Is a Motion to Dismiss?

One of the most common criminal pretrial motions is a motion to dismiss. This type of motion claims that the charge or complaint must be dismissed by the judge due to factual issues, or procedural matters such as an expiration of the statute of limitations. If a motion to dismiss is granted by a judge, the case will not proceed any further.

Every state has different rules regarding the filing deadlines for motions to dismiss. Federal courts also have their own set of rules regulating procedures for filing a motion to dismiss.

What Are the Grounds for a Motion to Dismiss? 

In order for a judge to grant a motion to dismiss, it must be clearly supported by valid grounds. Some common grounds on which a motion to dismiss can be based are:

  • The court lacks the proper jurisdiction or is not authorized to hear the case- for example, if the amount of money damages claimed is not high enough
  • The defendant was not properly served with papers or notified
  • Failure to properly state a claim
  • The venue is improper- this means that the action was filed at the wrong court

Of these different grounds, the more frequently filed motions involve a lack of jurisdiction or failure to state a claim.

What Is Required to File a Motion to Dismiss?

The basic requirements for filing a motion to dismiss are that it must be made in writing, and the motion must state that there are no disputed facts that are material to the case. It must also state that the undisputed facts are either insufficient to establish the person’s guilt or that they establish an available defense.

Motions to dismiss may be supported through various documents such as police reports, depositions, and affidavits, as long as they are sworn to under oath by the defendant. Depending on the jurisdiction, the motion to dismiss must be filed within a certain time period, usually before the pleadings have closed.

What Happens after the Motion Is Filed?

The opposing party may file a response to the pretrial motion to dismiss. The response must outline in detail any disputed facts that are relevant to the case. If the judge determines that there is a factual dispute, the motion will be denied. The trial will then proceed, since there are factual issues that still need to be resolved.

If the court decides that the motion is valid, the judge will sign an order and grant the motion to dismiss. The claim will be dismissed and neither side will be required to present any evidence.

A successfully filed motion to dismiss can have many consequences in the future, for example with regards to a retrial or with record expungement issues.

Do I Need a Criminal Defense Lawyer for a Motion to Dismiss?

Filing a motion to dismiss can be complex because it involves a determination of which facts and legal issues are relevant to the case. Creating a motion to dismiss requires a great amount of foresight and the ability to predict possible outcomes of a case. For these reasons, it is important that you work closely with a criminal defense lawyer in order to make sure that the motion is properly drafted and filed within the court’s deadlines.

Photo of page author Peter Clarke

, LegalMatch Content manager

Last Modified: 03-06-2018 02:32 AM PST

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