Motion To Dismiss

Apr

2

2011

Things to know before you file motion to dismiss or come across motion to dismiss filed by other party.

A ‘motion to dismiss “asks the court to decide an application even if it is true as stated, is not one for which the law provides a remedy. For example, an allegation that the defendant has failed to acknowledge the applicant passing him on the street, to the extent that no legal obligation to do so may exist, would be dismissed for lack of a valid claim: the court must assume the truth of factual allegations, but may request that the states no cause of action under the law applicable to the substance. A claim was filed after the statute of limitations has expired is also subject to dismissal. If granted, the application is dismissed without any evidence presented by the other side. A motion to dismiss has taken the place of the legal defense of the common law in most modern civil practice. When the court dismisses a case, many lay people state the case was “thrown out”.

Under Rule 12 of the Federal Rules of Criminal Procedure, a party may raise any defense by motion, opposition, or request that the court can determine without instruction from the general question. Before the trial, motions may be based on defects in the commencement of the action, defects in the indictment or information (which can be challenged at any time but they are generally raised before the trial begins). Pleadings in a federal criminal trial are pleadings in a criminal proceeding are the indictment, information, and means of not guilty, guilty and nolo contendere. A motion under section 14 may send the statement of charges (or specifications, see below) or defendants. In these cases, the motion to dismiss is characterized as a “motion to sever charges or defendants.”

Pursuant to Article 907 (Rules of Court Martial), a motion to dismiss a motion to terminate the proceedings on one or more criminal charges and specifications on grounds capable of resolution without trial of the general issue guilt. A motion may be based on reasons nonwaivable (eg lack of competence or failure to state an offense) and / or patterns inalienable (denial of a right to a speedy trial, the time limitation, double jeopardy means that a person has already been tried by court-martial or civilian federal court for the offense, even pardon or grant of immunity). Specifications are sometimes called “figures” or separate instances of a particular offense are related to specific factual evidence. A motion may seek to reject these specifications, especially if it is so defective, it substantially misled the accused, or is multiplicious.

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Also check out Motion to Strike Pleadings here http://proseanswer.com/738/motion-strike-pleadings/

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