It's the defense attorney's job to search for any holes in the prosecution's case against their client. One way criminal lawyers defend a case is by filing a "motion to dismiss."

Sometimes a defense attorney will file a motion to dismiss early on in the case, before either side has conducted discovery. When such a motion is filed, the defense is arguing that the material contained in the complaint is legally invalid.

When a court reviews a motion to dismiss, it considers the facts presented in the complaint. Typically, the defense files a motion to dismiss for one of the following reasons:

• That the court doesn't have the jurisdiction.
• The venue was legally improper.
• The prosecution did not state a claim.
• The defendant wasn't properly served.

Motion to Dismiss, a Common Pretrial Motion

If the defense succeeds in filing the pretrial motion, it could mean reduced or dismissed charges, thus it can be highly advantageous for the criminal defendant.

The motion to dismiss is commonly used in criminal cases; it doesn't argue the facts of the case, instead it's claiming that the court should dismiss the case because it's either not legally sound, or the statute of limitations has passed, even if the facts happen to be true.

The defense files a motion to dismiss in writing, stating that there aren't any material or disputed facts, and that the facts in the complaint don't establish complete guilt or a defense.

When filing a motion to dismiss, the defense may support their case with police reports or affidavits and depositions taken under oath, however, such evidence must be sworn by someone such as the defendant or another party with personal knowledge.

If the motion to dismiss is granted by the court, the case can be dismissed without the prosecution providing the court with any evidence.

Interested in filing a motion to dismiss? Contact a criminal defense attorney for help!