Motion to Dismiss Criminal

A pretrial Motion to Dismiss Criminal 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 Criminal comes in. The procedure and basis for a pretrial Motion to Dismiss Criminal vary somewhat depending on the jurisdiction’s rule, but it’s the outcome that matters.

Understanding a motion to dismiss

The Motion to Dismiss Criminal is a common pre-trial motion, used in both criminal and civil suits, that simply asks the courts to throw out the case. The law affords you certain protections when you’re charged with a crime. For example, you can’t be lawfully tried for a particular crime after a certain period of time has passed since the alleged crime occurred. This is commonly referred to as the statute of limitations. Further, one cannot be tried in a court that has no jurisdiction over your case. In cases like these, a Motion to Dismiss Criminal can be an effective pre-trial strategy, and if the judge grants the motion, the charges against you are dropped.

It’s important to understand that the Motion to Dismiss Criminal does not address your guilt or innocence, but simply challenges the terms or validity of the case itself. Likewise, cases are not dismissed simply because someone asks for it. Thus it’s important to have an experienced criminal defense attorney. The attorney can then determine whether there are valid reasons to argue for the dismissal of your case, and who can express these arguments effectively.

Reasons for filing a motion to dismiss

There are number of valid reasons why a case can and should be thrown out of court. Here are a few of the more common reasons why your attorney may file a Motion to Dismiss:

  1. Statute of limitations. Both federal and state laws put a time limit on certain alleged crimes as to when the state may try you for them. This time limit varies according to the crime. If your attorney can show that the statute of limitations has expired for the charges in question, the court must dismiss the case. The court can be moved vide a motion to dismiss.
  2. Lack of due process during the arrest. The police must follow certain procedures when arresting people for alleged crimes. If you were arrested under mere suspicion without due process or just cause, the resulting charges may be dropped.
  3. No jurisdiction. You can only be tried in a court that has lawful jurisdiction over your case, depending on where the crime occurred—for example, if the crime occurred on federal lands, the state may not be able to try you for the crime. If it can be shown that the court doesn’t have lawful jurisdiction over the alleged crime, the case must be thrown out. The parties may also make an application tot the court through filing a motion to dismiss.
  4. Errors in filing the complaint. When the prosecution formally charges you, the complaint or indictment must follow certain procedures in communicating what you’re charged with, and why. If the complaint fails to meet these procedures, and for any reason it becomes difficult to correct those errors, your attorney may present a convincing argument that those charges shouldn’t have been filed in the first place.
  5. Lack of admissible evidence. Before the trial, your attorney will be able to review the body of evidence the prosecution has gathered against you. If certain individual pieces of evidence are improperly obtained, your attorney may file a motion to exclude evidence to keep that evidence from being presented at trial. However, if a significant amount of evidence is inadmissible, or if there is any doubt that the prosecution has enough evidence to secure a conviction, a Motion to Dismiss Criminal may convince the judge not to move forward with the case.

Pre-trial motions to dismiss

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 to dismiss ask the judge to admit or exclude certain evidence at trial, but the aim of a Motion to Dismiss Criminal is to stop the criminal prosecution altogether. For a criminal defendant, getting a Motion to Dismiss Criminal granted is the best case scenario—it means beating the case without having to go to trial.

What is a pre-trial motion to dismiss?

A pretrial Motion to Dismiss Criminal challenges the legality of the criminal complaint or indictment or the fairness of the trial. This Motion to Dismiss Criminal 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 pre-trial 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.

  1. 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.

  1. 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.)

  1. 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.

A voluntary dismissal of a case

A prosecutor might make the unilateral decision to dismiss some or all of the charges, without the need for a motion to dismiss. This situation might occur when the prosecution’s case suddenly falls apart upon discovery of new evidence or a key witness recants. In such cases, you’ll sometimes hear judges or lawyers refer to the charges as “nol prossed” or voluntarily dismissed.

Procedure for a criminal 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 Criminal 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.

Dismissal of a criminal charge by a motion to dismiss

Geerally, the first task for a defense attorney in a criminal case is to determine whether there are any grounds on which the case could be dismissed before a plea or trial. Some grounds for dismissal include:

  1. lack of probable cause to arrest
  2. an improper criminal complaint or charging document
  • an illegal stop or search
  1. lack of evidence to prove the defendant committed the crime
  2. an unavailable witness who is necessary to prove the defendant committed the crime, and
  3. loss of evidence necessary to prove the defendant committed the crime.

The following aspects are grounds for the grant of orders sought in a Motion to Dismiss Criminal a criminal case:

  1. No probable cause to arrest

In order to arrest a person, police must have probable cause to believe that the person committed a crime. A police officer can’t arrest a person simply because he has a gut feeling the person just robbed the liquor store down the street. The officer must have a reasonable belief based on objective, factual circumstances. For instance, after the liquor store robbery, an eyewitness to the robbery describes the robber to the police officer as a person wearing a red jacket with a dragon emblem and carrying a knife with a long blade and black handle. If the officer sees a person matching that description hiding in a doorway down the street, she likely has probable cause to arrest.

If the officer arrested a person hiding in a doorway near the liquor store without any physical description from a witness or other basis to believe the person committed the crime, the officer made the arrest without probable cause and the charges may be dismissed. If, however, the prosecutor obtains other substantial evidence that tends to prove that the defendant robbed the store, the prosecutor can refile the charges or possibly avoid a dismissal. However the accused can have orders sought in the Motion to Dismiss Criminal granted by court.

  1. Mistake in criminal complaint

When a law enforcement officer writes a criminal complaint or charging document, the officer must sign the document under oath, attesting to the truthfulness of the contents. State and local law direct what information a complaint or charging document must contain. If the complaint does not comply with state or local law because of a significant error or omission, the prosecutor cannot simply edit the document by hand and submit it to the court. The officer who wrote and signed the complaint, under oath, must make those changes. If the officer retires or leaves his job before the error is discovered or is unavailable for some other reason and no other officer was involved in the case, the prosecutor may have to dismiss the complaint. This can be done through a motion to dismiss.

  1. Illegal stop or search

A law enforcement officer can only stop a vehicle or a person on the street under certain circumstances. Such includes when the driver is speeding or violating other traffic laws or the police officer reasonably suspects a crime is being committed. If an officer randomly stops a person or a car or makes a stop because of the driver’s race, the stop is illegal and violates the person’s constitutional rights.


Police can search a person, car, or house with a search warrant or when an exception exists that allows a warrantless search. For instance, police can search a person without a warrant after arresting the person for a crime, or if an officer has a reasonable belief that the person is carrying a deadly weapon. Police can search a car without a warrant after arresting a driver for driving while intoxicated or another crime. Police can enter a house without a warrant in an emergency, such as after hearing shots being fired in the house.

If police conduct a search without a warrant and no special circumstances permitted the search, no evidence gathered in the search can be used against the defendant to prove the crime. If this instance, the defense can request that the case be dismissed on the grounds that the prosecution has no evidence to prove the charges against the defendant. This can be done through filing a motion to dismiss.


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