Criminal Defendants on Trial - Motions to Dismiss Charges

• Before Charges are Filed

It is valuable to support an experienced criminal defense lawyer as soon as possible after the accused is arrested. In fact, if the police touch 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 former functions is to effort to sell out or eliminate the charges. That is the basic thrust behind motions to dismiss throughout the whole case: to sell out or eliminate charges.

After the arrest there is a microscopic 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 consulation room when the State's case filing attorneys are inspecting 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 gift the facts in support of his client's position in front of this esteemed group of prosecutors so that they will give due observation to the arguments for reducing or eliminating charges. This suited tool takes place before they literally file charges. This, too, is akin to a request for retrial to dismiss or sell out 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 selection between two possible pleas. The attorney will warn the Court if the accused intends to plead guilty [meaning a jury trial is not wanted and the Court can speak sentence right away], or the accused can plead not guilty [meaning a jury trial is desired and none of the Constitutional possession will be waived].

Marion County Clerk Of Court

If the attorney selects to file a Written Plea of Not Guilty and request for Jury Trial with the Court prior to the date of the Arraignment, the Court will waive the nearnessy 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 nearnessy of the defendant can be automatically waived. [If a defendant lives out of state or has some singular impediment to appearing in Court personally, the attorney can file a written request for retrial for the Court to waive his/her appearance and get an Order to that affect. This is beyond the scope of this article.]

Criminal Defendants on Trial - Motions to Dismiss Charges

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 commonly set the time for production motions to dismiss at the time of Arraignment. It is rare that the lawyer could be prepared so soon in the representation to speak grounds for dismissing the charges in writing including case citations of law. This is why the attorney asks for more time to study either there are viable grounds for filing a request for retrial to Dismiss and to achieve the permissible legal research. If the grounds for dismissal are based on fundamental possession [i.e., possession that arise under the U.S. Constitution] they can be raised at any time during the pre-trial procedure.

• The Written request for retrial 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 request for retrial to dismiss is filed with every answer to every complaint and is very often granted by the Court, in criminal cases a request for retrial to dismiss is less often used. That is because in criminal cases the State brings the charges and only the State can convert 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 rule that from the record and dismiss that payment as a matter of law.

The criminal law request for retrial to dismiss is literally more like the civil law request for retrial for summary judgment. In both of these, the party production the request for retrial is saying in ensue 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 need the case to go to a jury to rule the factual questions. In criminal cases, the State can file a traverse which is a response outlining the facts that are literally in dispute. If the State can show that there is a factual dispute, the request for retrial to dismiss must be denied and the case must go to the jury to rule those facts.

The request for retrial to dismiss must be made in writing and state that there are no material disputed facts and that the undisputed facts do not design a prima facie case of guilt or that they do design a unblemished defense. The attorney will cite to police reports, affidavits, depositions under oath, etc. To support the request for retrial to dismiss. The request for retrial must be sworn to under oath by the defendant or by someone with personal knowledge. All defenses ready by plea, other than not guilty, must be raised by a request for retrial to dismiss either they reveal to matters of form, substance, former acquittal, former jeopardy, not guilty by speculate of insanity, or any other defense.

The function of the attorney remains constant. He is consistently trying to sell out or eliminate charges.

• The State's Response to the request for retrial to Dismiss

If the request for retrial is enough 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 either 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 greatest facts that raise a material issue of fact in the case, the Court must deny the request for retrial 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 convert their testimony slightly at trial. As always, they can be used to impeach the witness' credibility.

Now it can be best understood why experienced criminal defense lawyers, whose role is to sell out or eliminate charges, seek to apply the suited tool of motions to dismiss in order to best their client's position during both pretrial and jury trial.

Criminal Defendants on Trial - Motions to Dismiss ChargesDanny J. Shipp, Levy Clerk of Court (D) Tube. Duration : 2.35 Mins.

An interview with incumbent candidate for Levy Clerk of Court. If you are a candidate and would like to do an interview with The Newscaster, contact Tom Russell at 352-447-4588

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