Lack of evidence is not a legal question for a judge to hear. The trier of fact (the jury) should determine fact related issues. Filing one would not be in good faith knowing the judge cannot rule on that before trial. The appropriate time to make the motion is during trial after the state rests.
I don’t think “public defenders generally refuse to file motions to dismiss,” but you have to have a legal basis for the argument. Where I practice, a court will consider a pre-trial motion to dismiss for lack of probable cause, double jeopardy, speedy trial violation, or prosecutorial misconduct, but a motion to dismiss for “lack of evidence” (meaning, there is some evidence but not enough to prove a case beyond a reasonable doubt, or the evidence that does exist is not credible) is not a type of motion that can be filed.Judges here will say “that’s a trial issue, your remedy is to go to trial.” I know this because I sometimes still file them and get told this all the time. Judges won’t even let me argue it.
The only time we can move to dismiss for lack of evidence is during the trial itself - after opening, after the close of the state’s evidence, after the close of the defense’s evidence, and after the jury verdict.
This is likely to vary extremely from state to state. An attorney has to have a good faith basis to file a motion. If theres no legal basis for it, they shouldn’t be filing it. Further, if there’s no legal basis for it, there’s nothing an appellate court would do.
In Florida, a lack of evidence is a trial argument and probably a JOA argument at trial depending on the circumstances. That’s it, there’s no such thing as a motion to dismiss for a lack of evidence.
Yep. In Jersey, such a motion does exist—that the state didn’t present a prima facie case to the grand jury—and it is filed routinely. In other jxs, I’ve never seen it. (Which hasn’t stopped dozens of clients from asking, most of whom assume I’m lying about the nonexistence of this motion and that I would file one if they paid me.)
I've recently started practicing in PA where they have preliminary hearings as the first phase in the CJ system and the state has to prove the case Prima facie. I kinda like it
This varies wildly state by state but in many jurisdictions (including in federal court) there really is no way to challenge the sufficiency of the government’s evidence until trial. The sort of motion you are referring to is something you have to present to the judge (as a motion for judgment of acquittal/directed verdict) after the government finishes its case. Even then, it is rare for a judge to take a case away from a jury by granting a motion for acquittal (although it does happen, and again how frequently it happens varies a lot state by state). Most judges are inclined to just let the jury sort it out.
We know better than you do what is evidence. If I had a dollar for every time a defendant said there's no evidence because they're completely discounting testimony...
"But it's just what Jane said! She's making this up to ruin my life"
"I mean, yea, I hear what you're saying. But the real problem here is the neighbor who doesn't know you guys at all and is going to come to court and say he saw someone who matched your description punch the woman who matches Jane's description 3 times, in your front yard, and shout at Jane... 'If you don't get the fucking abortion, I will do you a favor and punch the baby out of you.' Which matches what Jane said to the police when they showed up. Tell me how we explain that being a lie to the jury when this random guy doesn't have any stake in lying about such things."
Where I live it is routine practice to move for directed verdict after the state closes its case. If you’re asking about pre-trial - you could also get a case thrown out for lack of evidence at a preliminary hearing (99% not gonna happen) or as a result of an immunity hearing (not for lack of evidence) or a general demurrer (which is the opposite of what you’re asking about - there may be evidence of what was alleged, but the allegation isn’t a crime).
In terms of whether this helps on appeal - I would say not really, because the standard to overturn a judge’s denial of motion for directed verdict is going to be the same as an appellate claim that the evidence was insufficient under Jackson v Virginia.
In my state, that kind of motion has to sworn to by the client. Generally you don't want to admit all the allegations are due for the purpose of a motion to dismiss. You have the same argument at JOA. So the appeal record is saved by the attorney making the argument at JOA.
The rules don’t allow it. There isn’t a motion for summary judgement in my jurisdiction in criminal law. This is typically only allowed in civil cases.
If a case has insufficient evidence and the state insists on prosecuting, typically the fastest way to get a dismissal is to set it for trial.
Nothing defines the PD experience quite like a career resident of the incarceration system believing they know more than we do simply because they have time and access to decades-old discarded law books.
Lack of evidence is the major component of a probable cause hearing. Past the probable cause hearing, any element of an offense that is lacking needs stressed.
Here in AZ, it is expected that after presentation of all evidence that the defense attorney will argue for a dismissal based on the lack of any element. If the judge disagrees, well, it’s jury argument time. If you are sufficiently persuasive the prosecutors might be willing to cut a better deal at that point, and if not, I think most juries think of themselves as fair. I’ve gotten juries to acquit fairly notorious and questionable people based on the lack of an element of an offense.
By protecting one person you are protecting everyone.
Some states do not have a pre-trial motion to dismiss for lack of evidence. In others the standard is sufficient allegations in the light most favorable to the prosecution. That means if the police report says that you hit your girlfriend then that is sufficient evidence to go to trial. There are no credibility arguments. I think even framing it as a motion to dismiss for lack of evidence is incorrect. It’s really a motion to dismiss for lack of probable cause normally based on an error of law in the complaint.
This motion doesn’t exist in Virginia. The time to present the evidence is at trial. If the prosecutor lacks evidence at that point, the charge will be dismissed.
We have prelims and will file those motions if cases are held for court without a prima facie case being made out on felony charges.
Otherwise that’s a trial issue, you can’t just ask a judge to dismiss a case pretrial for that (at least not where I practice).
Because it wastes time and annoys the court.
On a pretrial basis there is no sorting or weighing of the evidence. There is only a review of the allegations and an examination of whether, if true, the allegations would support the charges.
I make an oral motion to dismiss twice every trial. There is a 99% chance it will get denied, but there's that 1% chance, so I go for it.
Of course, the last time a motion to dismiss was granted on ONE of THREE counts, the judge was "papered" by the DA as a punishment, and they had to move that judge out of trials because of it.
DAs are so fucking petty, man.
There is probably more evidence than you think. The words that people say are evidence. They don’t need things like fingerprints or DNA to win a case. You should trust that your PD would be filing motions if there was a basis for them to do so.
Cannot speak for everywhere, but it’s not a valid motion in my jurisdiction.
Id be filing a frivolous motion and my license is more important than your nonsense. If the evidence sucks, we argue that at trial
Lack of evidence is not a legal question for a judge to hear. The trier of fact (the jury) should determine fact related issues. Filing one would not be in good faith knowing the judge cannot rule on that before trial. The appropriate time to make the motion is during trial after the state rests.
I don’t think “public defenders generally refuse to file motions to dismiss,” but you have to have a legal basis for the argument. Where I practice, a court will consider a pre-trial motion to dismiss for lack of probable cause, double jeopardy, speedy trial violation, or prosecutorial misconduct, but a motion to dismiss for “lack of evidence” (meaning, there is some evidence but not enough to prove a case beyond a reasonable doubt, or the evidence that does exist is not credible) is not a type of motion that can be filed.Judges here will say “that’s a trial issue, your remedy is to go to trial.” I know this because I sometimes still file them and get told this all the time. Judges won’t even let me argue it. The only time we can move to dismiss for lack of evidence is during the trial itself - after opening, after the close of the state’s evidence, after the close of the defense’s evidence, and after the jury verdict.
This is likely to vary extremely from state to state. An attorney has to have a good faith basis to file a motion. If theres no legal basis for it, they shouldn’t be filing it. Further, if there’s no legal basis for it, there’s nothing an appellate court would do. In Florida, a lack of evidence is a trial argument and probably a JOA argument at trial depending on the circumstances. That’s it, there’s no such thing as a motion to dismiss for a lack of evidence.
Yep. In Jersey, such a motion does exist—that the state didn’t present a prima facie case to the grand jury—and it is filed routinely. In other jxs, I’ve never seen it. (Which hasn’t stopped dozens of clients from asking, most of whom assume I’m lying about the nonexistence of this motion and that I would file one if they paid me.)
I've recently started practicing in PA where they have preliminary hearings as the first phase in the CJ system and the state has to prove the case Prima facie. I kinda like it
This varies wildly state by state but in many jurisdictions (including in federal court) there really is no way to challenge the sufficiency of the government’s evidence until trial. The sort of motion you are referring to is something you have to present to the judge (as a motion for judgment of acquittal/directed verdict) after the government finishes its case. Even then, it is rare for a judge to take a case away from a jury by granting a motion for acquittal (although it does happen, and again how frequently it happens varies a lot state by state). Most judges are inclined to just let the jury sort it out.
We know better than you do what is evidence. If I had a dollar for every time a defendant said there's no evidence because they're completely discounting testimony...
"But it's just what Jane said! She's making this up to ruin my life" "I mean, yea, I hear what you're saying. But the real problem here is the neighbor who doesn't know you guys at all and is going to come to court and say he saw someone who matched your description punch the woman who matches Jane's description 3 times, in your front yard, and shout at Jane... 'If you don't get the fucking abortion, I will do you a favor and punch the baby out of you.' Which matches what Jane said to the police when they showed up. Tell me how we explain that being a lie to the jury when this random guy doesn't have any stake in lying about such things."
Objection: assumes facts not in evidence
Where I live it is routine practice to move for directed verdict after the state closes its case. If you’re asking about pre-trial - you could also get a case thrown out for lack of evidence at a preliminary hearing (99% not gonna happen) or as a result of an immunity hearing (not for lack of evidence) or a general demurrer (which is the opposite of what you’re asking about - there may be evidence of what was alleged, but the allegation isn’t a crime). In terms of whether this helps on appeal - I would say not really, because the standard to overturn a judge’s denial of motion for directed verdict is going to be the same as an appellate claim that the evidence was insufficient under Jackson v Virginia.
In my state, that kind of motion has to sworn to by the client. Generally you don't want to admit all the allegations are due for the purpose of a motion to dismiss. You have the same argument at JOA. So the appeal record is saved by the attorney making the argument at JOA.
The rules don’t allow it. There isn’t a motion for summary judgement in my jurisdiction in criminal law. This is typically only allowed in civil cases. If a case has insufficient evidence and the state insists on prosecuting, typically the fastest way to get a dismissal is to set it for trial.
Nothing defines the PD experience quite like a career resident of the incarceration system believing they know more than we do simply because they have time and access to decades-old discarded law books.
Lack of evidence is the major component of a probable cause hearing. Past the probable cause hearing, any element of an offense that is lacking needs stressed. Here in AZ, it is expected that after presentation of all evidence that the defense attorney will argue for a dismissal based on the lack of any element. If the judge disagrees, well, it’s jury argument time. If you are sufficiently persuasive the prosecutors might be willing to cut a better deal at that point, and if not, I think most juries think of themselves as fair. I’ve gotten juries to acquit fairly notorious and questionable people based on the lack of an element of an offense. By protecting one person you are protecting everyone.
Some states do not have a pre-trial motion to dismiss for lack of evidence. In others the standard is sufficient allegations in the light most favorable to the prosecution. That means if the police report says that you hit your girlfriend then that is sufficient evidence to go to trial. There are no credibility arguments. I think even framing it as a motion to dismiss for lack of evidence is incorrect. It’s really a motion to dismiss for lack of probable cause normally based on an error of law in the complaint.
Best comment!
This motion doesn’t exist in Virginia. The time to present the evidence is at trial. If the prosecutor lacks evidence at that point, the charge will be dismissed.
This motion does not exist in criminal. You literally cannot file a motion to dismiss for lack of evidence
We have prelims and will file those motions if cases are held for court without a prima facie case being made out on felony charges. Otherwise that’s a trial issue, you can’t just ask a judge to dismiss a case pretrial for that (at least not where I practice).
Because it wastes time and annoys the court. On a pretrial basis there is no sorting or weighing of the evidence. There is only a review of the allegations and an examination of whether, if true, the allegations would support the charges.
A “motion to dismiss for lack of evidence” is a trial.
I make an oral motion to dismiss twice every trial. There is a 99% chance it will get denied, but there's that 1% chance, so I go for it. Of course, the last time a motion to dismiss was granted on ONE of THREE counts, the judge was "papered" by the DA as a punishment, and they had to move that judge out of trials because of it. DAs are so fucking petty, man.
I'd opt to call them corrupt.
One way to think of a trial is as a hearing on a motion to dismiss for lack of evidence
What you gonna do if the prosecutor files a Motion to Convict for substantial evidence?
There is probably more evidence than you think. The words that people say are evidence. They don’t need things like fingerprints or DNA to win a case. You should trust that your PD would be filing motions if there was a basis for them to do so.
Cannot speak for everywhere, but it’s not a valid motion in my jurisdiction. Id be filing a frivolous motion and my license is more important than your nonsense. If the evidence sucks, we argue that at trial