Criminal Defendants on Trial - Motions to Dismiss Charges

Lasting Power Of Attorney Forms - Criminal Defendants on Trial - Motions to Dismiss Charges

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Before Charges are Filed It is needful to support an experienced criminal defense lawyer as soon as possible after the accused is arrested. In fact, if the police experience the accused while 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 customary functions is to exertion to cut or eliminate the charges. That is the fundamental thrust behind motions to dismiss throughout the entire case: to cut or eliminate charges.

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After the arrest there is a petite 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 argument 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 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 great tool takes place before they unmistakably file charges. This, too, is akin to a appeal to dismiss or cut 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 in the middle of two possible pleas. The attorney will acquaint the Court if the accused intends to plead guilty [meaning a jury trial is not wanted and the Court can articulate 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].

If the attorney selects to file a Written Plea of Not Guilty and quiz, for Jury Trial with the Court prior to the date of the Arraignment, the Court will waive the proximity 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 proximity 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 appeal for the Court to waive his/her appearance and regain 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 ready 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 study either there are viable grounds for filing a appeal to Dismiss and to perform the proper 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 while the pre-trial procedure.
The Written appeal to Dismiss There are two basic divisions of the Court system: civil cases concern money issues; criminal cases concern freedom interests. While in civil cases the appeal to dismiss is filed with every reply to every complaint and is very often granted by the Court, in criminal cases a appeal 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 conclude that from the description and dismiss that payment as a matter of law.

The criminal law appeal to dismiss is unmistakably more like the civil law appeal for overview judgment. In both of these, the party making the appeal is saying in succeed 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 conclude the factual questions. In criminal cases, the State can file a traverse which is a response outlining the facts that are unmistakably in dispute. If the State can show that there is a factual dispute, the appeal to dismiss must be denied and the case must go to the jury to conclude those facts.

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

The function of the attorney remains constant. He is consistently trying to cut or eliminate charges.
The State's Response to the appeal to Dismiss If the appeal is adequate 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 ultimate facts that raise a material issue of fact in the case, the Court must deny the appeal 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 description 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 good understood why experienced criminal defense lawyers, whose role is to cut or eliminate charges, seek to use the great tool of motions to dismiss in order to good their client's position while both pretrial and jury trial.

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