Motion to dismiss charge

Motion to dismiss charge

If counsel intends to rely on the defense of res judicata or former jeopardy,FN28 or on factors entitling the accused to a dismissal in the interests of justice, counsel should move before trial for a dismissal of the charge. Assuming that the defendant has not waived his or her right to assert a violation of the right to a speedy trial, a motion to dismiss can also be grounded on lack of speedy prosecution, where the accused is not brought to trial within a time considered reasonable under the Sixth Amendment.FN29

In some jurisdictions, the defense may move to dismiss the charge on the ground that reasonable or probable cause was lacking for a grand jury indictmentFN30 or that the accused was illegally committed by the magistrate, if the charge was brought by way of preliminary hearing and information. The usual approach to challenge the charge at this stage in the proceedings is to attack the competency and sufficiency of the evidence used to obtain the indictment or information. Dismissal of the charge on this ground forces the prosecution to seek another indictment or information through the use of proper evidence, or to discontinue the case.

Counsel must carefully examine the grand jury transcripts, or those of the preliminary hearing, to determine if a motion to dismiss is feasible. Counsel's motion should always be accompanied by appropriate legal authority and affidavits or declarations and should be made upon notice to the prosecutor's office.FN31