A pretrial motion to dismiss can be an extremely useful tool for criminal defendants and their defense attorneys. In most criminal cases, the defendant either makes a plea agreement with the prosecution or goes to trial. Sometimes though, a defense lawyer can get the charges tossed before trial—and that's where the pretrial motion to dismiss comes in. The procedure and basis for a pretrial motion to dismiss vary somewhat depending on the jurisdiction's rule, but it's the outcome that matters.
What Are Pretrial Motions?
Before a criminal trial begins, both sides—the prosecution and defense—can make pretrial motions. In the motion, the lawyer asks the judge to make a particular ruling on some aspect of the case. These rulings are crucial in setting the stage for the trial. Generally, lawyers will submit their motions in writing, though occasionally, judges also let lawyers make them orally.
The majority of pretrial motions ask the judge to admit or exclude certain evidence at trial, but the aim of a motion to dismiss is to stop the criminal prosecution altogether. For a criminal defendant, getting a motion to dismiss granted is the best case scenario—it means beating the case without having to go to trial.
What Is a Pretrial Motion to Dismiss?
A pretrial motion to dismiss challenges the legality of the criminal complaint or indictment or the fairness of the trial. This motion puts legal issues before the judge that may end the case before it goes to the jury to decide whether the defendant committed the crime (a factual issue). If the prosecution’s case fails on legal grounds, the court must dismiss it.
Examples of Pretrial Motions to Dismiss
Although the motion isn't filed in every case, many circumstances will justify a pretrial motion to dismiss. Below are just a few examples.
Statute of Limitations Expired
For many crimes, there’s a limit on how long the prosecution can wait before filing charges. If that time has passed, the defendant can’t be prosecuted. But it's usually up to the defendant to raise the issue.
Right to a Speedy Trial Violated
After being formally accused of a crime, the defendant has the right to a trial within a reasonable time. If there’s been excessive delay by the government, the defendant might be entitled to dismissal.
Double Jeopardy Claimed
A defendant who has already been acquitted of a crime can’t be prosecuted a second time for the same offense. Not trying someone twice might seem like an obvious situation, but it can get nuanced—for instance, where a case involves overlapping offenses or lesser-included offenses. (For much more on when re-prosecution isn’t allowed, see our article on double jeopardy.)
Prosecutorial Misconduct
Occasionally, a judge will dismiss a case when the prosecution has committed outrageous misconduct—for example, intentionally eavesdropping on a confidential conversation between attorney and client.
What Is the Procedure for a Motion to Dismiss?
Most courts follow the same general procedure for pretrial motions to dismiss, but rules can differ from state to state. After the defense files its motion, the judge typically gives the prosecution an opportunity to respond in writing. The prosecution will file a response explaining why the judge shouldn’t dismiss the case. Normally, the judge then sets a date for the sides to argue their positions in court. A judge will ordinarily decide whether to grant or deny the motion immediately after the arguments.
When the judge denies all or part of the motion to dismiss, the case will generally proceed forward to trial. If the judge grants the motion and dismisses all of the charges, the defendant should be free to go. A successful motion to dismiss may spares a defendant the embarrassment, expense, and possible punishment of a criminal trial. (However, the possibility still exists that the prosecution will challenge the judge’s ruling to grant the pretrial motion to dismiss.)
Talk to a Lawyer
If you're facing criminal charges or have been arrested, contact a criminal defense attorney in your area. A lawyer can help you understand the charges and whether there's a basis to file a motion to dismiss.