It is essential to retain an experienced criminal defense lawyer as soon as possible after the accused is arrested. In fact, if the police contact the accused during their investigation but before arrest, it is time to consult with a criminal defense lawyer. As the attorney discusses the investigation with the detective he might be able to convince the police not to make an arrest at all or to arrest on lesser charges. One of the attorney's primary functions is to attempt to reduce or eliminate the charges. That is the underlying thrust behind motions to dismiss throughout the entire case: to reduce or eliminate charges.
After the arrest there is a slight window of two to three weeks before the State Attorney's Office files the formal charges. This is a crucial time window. Wouldn't it be great to be in the conference room when the State's case filing attorneys are considering what, if any, charges they will file in this case? Well, the accused cannot be there. The experienced criminal defense lawyer knows just how to present the facts in support of his client's position in front of this esteemed group of prosecutors so that they will give due consideration to the arguments for reducing or eliminating charges. This powerful tool takes place before they actually file charges. This, too, is akin to a motion to dismiss or reduce charges that the attorney can work with even before the case begins in Court.
After Charges Have Been Filed
Once the State Attorney's case filing section decides on the charges, a written Information is filed with the Clerk in the Court file. At this point, these are the formal charges that the attorney will be fighting on his client's behalf. The Court will set an Arraignment, which is the first Court hearing. The formal charges may be read aloud in open Court unless the accused decides to waive the reading. Next the accused must make a choice between two possible pleas. The attorney will inform the Court if the accused intends to plead guilty [meaning a jury trial is not wanted and the Court can pronounce sentence right away], or the accused can plead not guilty [meaning a jury trial is desired and none of the Constitutional rights will be waived].
If the attorney selects to file a Written Plea of Not Guilty and Demand for Jury Trial with the Court prior to the date of the Arraignment, the Court will waive the presence of the defendant and his/her attorney and the reading of the charges is also waived. This procedure can save the defendant a trip to the courthouse. This is the only Court hearing where the presence of the defendant can be automatically waived. [If a defendant lives out of state or has some particular impediment to appearing in Court personally, the attorney can file a written motion for the Court to waive his/her appearance and obtain an Order to that affect. This is beyond the scope of this article.]
Whether the defendant appears for formal Arraignment or waives it by Written Plea filed by his/her attorney beforehand, the attorney will always ask the Court for 15 days for the filing of Defense motions. The rules of Court generally set the time for making motions to dismiss at the time of Arraignment. It is rare that the lawyer could be prepared so soon in the representation to articulate grounds for dismissing the charges in writing including case citations of law. This is why the attorney asks for more time to investigate whether there are viable grounds for filing a Motion to Dismiss and to perform the proper legal research. If the grounds for dismissal are based on fundamental rights [i.e., rights that arise under the U.S. Constitution] they can be raised at any time during the pre-trial procedure.
The Written Motion to Dismiss
There are two basic divisions of the Court system: civil cases concern money issues; criminal cases concern liberty interests. While in civil cases the motion to dismiss is filed with every answer to every complaint and is very often granted by the Court, in criminal cases a motion to dismiss is less often used. That is because in criminal cases the State brings the charges and only the State can change or alter the charges unless there are clear grounds for the Court to take control and dismiss as a matter of law. For example, if the statute of limitations has run, the Court can determine that from the record and dismiss that charge as a matter of law.
The criminal law motion to dismiss is actually more like the civil law motion for summary judgment. In both of these, the party making the motion is saying in effect that there are no material facts in dispute and therefore the law requires that the charge/complaint be dismissed. In civil cases, the other party will try to file affidavits or statements under oath that controvert the facts and thus require the case to go to a jury to decide the factual questions. In criminal cases, the State can file a traverse which is a response outlining the facts that are actually in dispute. If the State can show that there is a factual dispute, the motion to dismiss must be denied and the case must go to the jury to decide those facts.
The motion to dismiss must be made in writing and state that there are no material disputed facts and that the undisputed facts do not establish a prima facie case of guilt or that they do establish a complete defense. The attorney will cite to police reports, affidavits, depositions under oath, etc. to support the motion to dismiss. The motion 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.
The function of the attorney remains constant. He is consistently trying to reduce or eliminate charges.
The State's Response to the Motion to Dismiss
If the motion is sufficient on its face, the State must oppose by either traverse or demurer. A traverse says that the motion's factual assertions are false or incomplete and issues of fact remain as to whether the defendant committed the crime. A demurrer says that even if the facts alleged by the defendant are true and complete, dismissal cannot be granted as a matter of law. If the state's traverse or demurrer indicates ultimate facts that raise a material issue of fact in the case, the Court must deny the motion to dismiss.
Evidentiary Uses
Sworn motions to dismiss and traverses are sharp tools in the criminal defense lawyer's hand as he crafts this pretrial battle. Even more they are power weapons for the trial because they are now in the record as admissions by party opponents. They will be admissible as substantive evidence if any of the State's witnesses change their testimony slightly at trial. As always, they can be used to impeach the witness' credibility.
Now it can be better understood why experienced criminal defense lawyers, whose role is to reduce or eliminate charges, seek to utilize the powerful tool of motions to dismiss in order to better their client's position during both pretrial and jury trial.
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