Criminal Defendants on Trial - Motions to Dismiss Charges

• Before Charges are Filed

It is essential to retain an experienced criminal defense lawyer as soon as possible after the accused is arrested. In fact, if the police contact the accused during 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 primary functions is to attempt to reduce or eliminate the charges. That is the underlying thrust behind motions to dismiss throughout the entire case: to reduce or eliminate charges.

After the arrest there is a slight 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 conference room when the State's case filing attorneys are considering 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 powerful tool takes place before they actually file charges. This, too, is akin to a motion to dismiss or reduce 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 between two possible pleas. The attorney will inform the Court if the accused intends to plead guilty [meaning a jury trial is not wanted and the Court can pronounce sentence right away], or the accused can plead not guilty [meaning a jury trial is desired and none of the Constitutional rights will be waived].

If the attorney selects to file a Written Plea of Not Guilty and Demand for Jury Trial with the Court prior to the date of the Arraignment, the Court will waive the presence 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 presence 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 motion for the Court to waive his/her appearance and obtain 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 prepared 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 investigate whether there are viable grounds for filing a Motion to Dismiss and to perform the proper legal research. If the grounds for dismissal are based on fundamental rights [i.e., rights that arise under the U.S. Constitution] they can be raised at any time during the pre-trial procedure.

• The Written Motion to Dismiss

There are two basic divisions of the Court system: civil cases concern money issues; criminal cases concern liberty interests. While in civil cases the motion to dismiss is filed with every answer to every complaint and is very often granted by the Court, in criminal cases a motion 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 determine that from the record and dismiss that charge as a matter of law.

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

The motion to dismiss must be made in writing and state that there are no material disputed facts and that the undisputed facts do not establish a prima facie case of guilt or that they do establish a complete defense. The attorney will cite to police reports, affidavits, depositions under oath, etc. to support the motion to dismiss. The motion must be sworn to under oath by the defendant or by someone with personal knowledge. All defenses available by plea, other than not guilty, must be raised by a motion to dismiss whether they relate to matters of form, substance, former acquittal, former jeopardy, not guilty by reason of insanity, or any other defense.

The function of the attorney remains constant. He is consistently trying to reduce or eliminate charges.

• The State's Response to the Motion to Dismiss

If the motion is sufficient 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 whether 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 motion 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 record 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 better understood why experienced criminal defense lawyers, whose role is to reduce or eliminate charges, seek to utilize the powerful tool of motions to dismiss in order to better their client's position during both pretrial and jury trial.

For more helpful information on success strategies for a person charged with a crime, contact

Ira Still, Esquire
Web: http://www.istilldefendliberty.com
Info Blog: http://istilldefendliberty.blogspot.com

Ira Still has been a criminal defense trial lawyer in Florida for over 30 years. He successfully represents his clients on all crimes and in all courts. Ira has had many, many jury trials and is well known in Miami and Ft. Lauderdale as a very successful trial and appellate lawyer. He has argued death penalty collateral appeals in the Florida Supreme Court and in various District Courts of Appeal. Ira has tried high profile cases such as police shooting a person and persons charged with shooting police; capital murder and capital sexual battery; violent crimes; drug trafficking; and virtually every other criminal charge. Ira Still is also an author, speaker, teacher, mentor and coach.

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Tips for Finding the Right Criminal Defense Attorney

If you or a loved one ever face criminal charges, there's no doubt that you will experience a tremendous amount of anxiety. And, in the midst of your distress, you'll need to select a criminal defense attorney. The urgency of your situation may hinder your ability to give careful consideration to finding the right attorney to represent you or your family member.

All practicing attorneys are educated in a variety of areas of law, and regardless of whether you live in Bothell, Washington or Ft. Lauderdale, Florida, all licensed attorneys will meet the requirements set forth by your state. That doesn't mean, however, that every attorney has experience in handling criminal defense. Here, then, are tips to help you select the criminal defense attorney that will best serve you or your loved one.

1. Look for a Team, Rather than an Individual

Although many law firms employ a business strategy that calls for assigning a single lawyer to each case, this is often not the best approach to criminal defense. For example, when the assigned attorney is working on another case, out of the office, or on vacation, you won't be able to reach her or him. In addition, since even an attorney with considerable experience isn't well versed in every situation, your case may suffer. Further, those who are prosecuting your case have a whole team of experts at their disposal; you should have a team on your side as well.

Ideally, you should select a law firm that works as a team. A former prosecutor and a former public defender, for example, would bring distinct perspectives to your case. In addition, the attorneys should have access to investigators and experts who will work on your behalf.

2. Look for Specific, Relevant Experience

Just as you wouldn't consult a mechanic if you needed your house painted, you shouldn't hire attorneys that focus on class action suits when you need lawyers who will mount your criminal defense. Find a law firm that concentrates on just a few types of legal matters, including criminal defense. For example, you might look for attorneys that have experience handling DUI, traffic ticket defense, probation violation hearings, and general criminal defense.

3. Get an Assurance of Trial Preparation

Often, criminal defense cases are plea bargained or settled out of court. Attorneys know this, so many law firms will agree to represent you but will never prepare for a potential trial. The result may be a cost savings to you, but such a move may cost you more in the long run. A law firm that prepares for trial is in a much better bargaining position than one that doesn't. When prosecutors know that your attorney is fully prepared to go to trial, you'll be more likely to get a favorable plea bargain or even to have your charges dismissed entirely.

4. Obtain the Fees in Writing

When you don't understand the basis for legal fees, or when an attorney charges by the hour with no limit in place, you can find yourself in financial ruin. On the other hand, you do get what you pay for when it comes to criminal defense matters. Find the balance between the quality of your lawyers and the fees they charge. The best way to do this is to find a law firm that operates on a fixed price (including a trial), and that openly provides their fee structure. Ideally, they should offer a free consultation, at which time they will fully disclose - in writing - all possible costs and fees associated with your case.

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Florida Criminal Records

People to access criminal records for various reasons. Among them is one of the most common reasons for companies to be able to screen employees that they would do because you a criminal record search to hire an applicant and to acquire knowledge about the background of the person. However, there are also equally important reasons why people try to access criminal records in particular as regards the enforcement of law and in several cases. In Florida, that's very true, because theLaw enforcement in the state that use of criminal record as an enforcement tool that would help them to set specific laws and penalties that they impose on people who commit crimes.

An example of how criminal records are used in Florida

In Florida, only some of the laws, the law enforcement officials have difficulty in enforcing are those relating to driving under the influence (DUI) cases. This is because in recent years, the cases of drunk driving in the state increased dramatically,which has a hard time, law enforcement officials to bypass the high number of DUI cases that they encounter. To resolve this problem, the government has established very strict rules regarding the blood alcohol content limit in the state, and in view of the sanctions to be imposed if a person would be guilty for drunk driving. Penalties range from six months imprisonment for up to thirty years, involving murder.

With respect to the records of those who are caught drunk driving, the StateDepartment of Highway Safety of motor vehicles (FDHSMV) holds it. In these records, detailed information relating to DUI cases, given that may give some useful information to police officers, if in case they catch a second or third offender. This means that provide these records to help law enforcement history DUI cases, which in turn, be helpful to give the courts a sentence about the case. Apart from law enforcement, the public can also access this information by using aApplication on the website of FDHSMV and other Web sites that include http://www.FloridaDL.com, http://www.searchdetective.com and http://www.fdle.state.fl.us.

Besides the use as background checks on potential employees, seeking criminal record also serve to help the important role that law enforcement officers enforce the law. In Florida, that's very true, because the law enforcement effectiveness of the use of this instrument to impose the stiff penalties involved in DUI cases, which in turnhas the effect of discouraging people from a drink before they go on the road.

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Florida Criminal Records Search

Background checks are large in those days. There is already a common practice in the recruitment everywhere. Employers no longer just a word, people. You go and perform their own inspections. Criminal history record searches seems to be a favorite. They are suitable for sensitive spots, such as for security, funding, enforcement and the young, elderly, sick or disabled is observed with care.

Florida criminal records are generally by private investigators. Theycan be obtained from the Division of Criminal Justice Information Services (CJIS) to the Florida Department of Law Enforcement (FDLE). Free arrest records search is one of the most frequently requested, but there are restrictions on their use. For example, professional background check services are prohibited by law, they report in screening new employees.

Some require release of information signed, but Florida arrest records are public information through FloridaState laws and can therefore by anyone, as long as the prescribed procedures are required to be complied with. The unique thing is that every arrest record levels even applies to those who do not do to an indictment, and that those who has to be made by the military enforcement personnel.

All these documents are from the state, although they will be forwarded to the various city agencies such as police, highway patrol and sheriff's offices throughout the country. The search is availableat Florida State Archives and any arrests to the Federal Republic of investigation by Bureau (FBI) and the U.S. Justice Department reported.

It is not difficult to free arrest records search carried out today and the people should be in the habit of reviewing their own records every once in a while do in case of errors or inaccuracies. They are very handy, as a precautionary measure to new acquaintances, neighbors, coworkers, romance, and so on. There are limitations for use in formal framework, but then, so are convictions for other Florida.

The legality of the use it might be sticky for the layman. It has a lot to do with the source of the information. For this reason, the risk can be easily circumvented by obtaining them through commercial third party. These costumes are abundant in all major search engines and the top ones to be found, very professional, not least in the area of application of lawful arrest and other> Florida criminal records information.

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White Collar Crimes - When to Consult a Criminal Attorney

Economic crime cases in Miami, Florida or nearby areas like West Palm Beach and Fort Lauderdale often require the services of a professional Miami criminal lawyer. Lawyers are required for a variety of reasons, because trial - no matter how small they may be - are complicated in a hurry. If they do, can with an experienced Miami defense lawyer at your side, make the difference in the results of your study.

What are White CollarCrime?

These are crimes that relate primarily to financial matters. This does not include fraud, bribery, computer crime, embezzlement, crimes pension funds, limited consumer fraud, bankruptcy fraud, securities fraud, occupational crime, RICO crimes, identity theft, financial fraud, medical crimes and fraud. Employee crimes that often go undetected because they usually obliged to use a computer or paperwork, but these are crimes punishable by law and can lead toJail time or a refund if the defendant guilty.

Those who commit such crimes are often people who have a high social status. A defense lawyer who specialized in white collar crimes, in general, whose reputation and integrity are at stake in the business or political sectors. In Florida, there is a Miami defense lawyer representing the white collar defendants to a state or federal level can.

As a Miami Criminal Attorney can help?

Whether you're inwhite collar crime charges or fees have been charged a Miami criminal lawyer is able to support a range of tasks. He / she can help you with the situation by providing legal advice and to cope with viable solutions. A defense lawyer can help you to solve an effective defense strategy, and perhaps even the case before it ever goes to trial. A lawyer may be able to provide alternatives to prison time, if possible, find your particular case. Sometimes a "plea agreement iscan be made, in which you guilty to a lesser charge, the more serious charge will be abandoned.

It's a good idea, with a Miami defense lawyer before she took questions, the investigators consulted. Remember that everything you say may hurt the case, even if it seems unimportant at the time.

Use online resources to find a reliable defense lawyers. The search engines will make findings on key words or phrases you type. For example, if you have aLawyer in West Palm Beach, Florida, you could in "West Palm Beach defense lawyer." To a lawyer in Fort Lauderdale, type in the search for "Fort Lauderdale criminal lawyer" or "Fort Lauderdale criminal lawyer." In the Miami area, you could write that "a Miami trial lawyer," or rent "Miami criminal lawyer." The key is to lead to specific search queries based on your requirements. Could these sentences with a word or two about your specific charges. An example would be"Miami defense lawyer for bribery," or something similar.

Do not forget that white-collar crime trials, a result of civil action often when the victims are involved. You want a defense lawyer, that dealing with the legal "curve balls" that come your way before, during and after the process is. The right Miami defense lawyer can help you make the right decisions throughout the entire process.

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