If the statute of limitations has passed, the defendant may not be tried. Most states have laws that limit the time in which the state may charge the defendant with a certain crime. If a trial court overrules a demurrer, the defendant may raise that issue on appeal. In some states, the failure of the indictment to allege all necessary elements is not accomplished with a pre-motion but with a demurrer, which serves as a challenge to an indictment. If the indictment fails to allege intent or knowledge, for example, and those elements are part of the crime charged, the indictment is faulty and should be dismissed. Validity of the Indictment or InformationĪn indictment may fail to allege all the elements necessary to state a crime or to support the charge against the defendant. If the defendant raises a constitutional objection as outlined above to their indictment or trial in a pre-trial motion and the motion is denied, a successful appeal will overturn the conviction. In some states, the statute’s constitutionality is challenged through a demurrer, the overruling of which supports an appeal to challenge the validity of the law and the trial. A defendant may seek to have such a case dismissed by filing a pre-trial motion. A defendant may not be tried and convicted of an offense if the statute defining the offense is unconstitutional, for example, overly broad or vague. Another issue that may arise concerns the constitutionality of the statute under which the defendant is charged.A motion to dismiss based on violation of the Fifth Amendment’s prohibition against trying a person twice for the same crime ( “double jeopardy”) should be granted if it appears that the defendant was acquitted of or convicted of charges arising out of the same facts as the present charge. If these speedy trials rights have been violated, a motion to dismiss should be granted. While the federal constitutional standards for finding a violation of this right are based on consideration of a variety of factors, many states have statutes that specify the time in which a defendant must be tried following arraignment.
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