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 with a motion to dismiss. The procedure and basis for a pretrial motion to dismiss vary somewhat depending on where the case is, but the motion is an extremely useful tool for defense attorneys everywhere.

Pretrial Motions

Before a criminal trial begins, both sides—the prosecution and defense—can make pretrial motions. A pretrial motion is a request of the judge made before trial; the lawyer asks the judge to make a particular ruling on some aspect of the case. These motions are typically in writing, though occasionally judges also let lawyers make them orally.

The majority of pretrial motions are requests 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.

A successful motion to dismiss spares the defendant the embarrassment, expense, and possible punishment of a criminal trial. But, whereas the prosecution can’t appeal an acquittal by a jury, it's normally allowed to challenge a judge’s granting of a pretrial motion to dismiss.

Procedure

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.

Grounds for a Pretrial Motion to Dismiss

Although the motion isn't filed in every case, many circumstances will justify a pretrial motion to dismiss. These include, but aren’t limited to:

• The statute of limitations expiring. 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.
• Violation of the defendant’s right to a speedy trial. 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.
• Violation of the prohibition against double jeopardy. A defendant who has already been acquitted of a crime can’t be prosecuted a second time for the same offense. (For much more on when re-prosecution isn’t allowed, see our article on double jeopardy.)
• Egregious 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.

Questions for Your Attorney

• Could there be some basis for dismissal of charges in my case?
• Can you make a pretrial motion to dismiss in federal court?
• If my pretrial motion to dismiss is granted, can the prosecution refile charges?
• Is it possible to file a motion to dismiss if my trial already started?