I often get clients and clients' family/girlfriends/boyfriends telling me "you need to file a Motion to Dismiss."
Usually this is after someone in a jail or on the street told them their attorney isn't doing their job because the case is not dismissed -- and telling me that I need to file the motion immediately.
As a general rule in Ohio, there is no such thing as a Motion to Dismiss.
There are occasions where a Motion to Dismiss might be appropriate.
For example, if a person's speedy trial time has run, then a Motion to Dismiss is appropriate. It can also be appropriate if there is a material defect in the Indictment, such as failing to name the crime or location of the crime. Additionally, it may be appropriate if there is a constitutional flaw in the statute, such as that the statute is vague or violates either the Ohio and/or United States constitutions.
Also, a Motion to Dismiss is appropriate when the prosecutor agrees to drop the charges. While there are a number of reasons why a prosecutor can drop charges, the most applied reasoning is when the evidence does not support a conviction for that individual. For example, in a drug case, a prosecutor may drop the charges if the substances that were recovered were not controlled substances.
Another prime example of when a prosecutor might file a Motion to Dismiss is when a person has passed a stipulated polygraph. However, in those cases, it is the prosecutor -- not the defendant -- who is filing the motion.
As a general rule, Motions to Dismiss that are filed by defendants or their attorneys are only legally appropriate in a very limited number of cases. In the majority of those cases, the motions are overwhelmingly denied or the issues are quickly corrected. As an estimate, I would estimate that these motions are only successful in .001% of cases (i.e. almost never), but the issues should at least be examined.
As a general rule, what people are talking about are trial issues.
Often times, as I go through the conversation, I find that what people are talking about are issues of fact. They may hear about police reports and evidence, and believe that they have evidence that contradicts the police evidence.
In those cases, I try to explain to people that issues of fact have to be presented (1) to the prosecutor handling the case, who can make decisions as to if he/she is willing to consider a dismissal based on the new evidence; and (2) if the prosecutor does not decide to dismiss based on the new evidence, the evidence needs to be presented to the trier of facts -- either a jury or judge -- in trial.
Contrary to popular belief, judges will not grant pre-trial motions to dismiss based on factual disputes.
They need to hear the evidence in the context of a trial and allow the other side, whether it is the state or defense, to cross-examine the evidence. After that occurs, the trier of fact will have the opportunity to weigh the evidence's value and relevancy in making their determination as to guilt or innocence.
This does not mean to not alert your attorney to issues and evidence.
While this news may not sound good, the fact is that the evidence that you think supports a dismissal may be good at trial. For example, in a recent call of a girlfriend telling me to file a Motion to Dismiss, after listening to her logic and evidence, I was able to gain some information that will be extremely valuable at trial. This evidence could help her boyfriend -- and had she not contacted our office, we would not have had that information so soon in the investigation.
A skilled attorney can walk you through the prospective evidence in a case and let you know what evidence is important, not-so-important, admissible, inadmissible and even harmful to your case.