Motion to dismiss sexample2/7/2024 ![]() ![]() The motion should be denied, and the court should let the jury decide the facts. ![]() For example, if one witness said defendant had a weapon and one witness said he didn’t, that discrepancy should be resolved in the state’s favor. The prosecutor should be very specific in his or her response, and point out exactly what evidence establishes that element, remembering that all the evidence is viewed in the light most favorable to the state and with all inconsistencies resolved in the state’s favor. For example, the defense might argue that the state offered insufficient evidence to show that the defendant used a weapon, so the jury should only be charged on common law robbery instead of armed robbery. One specific element: Alternatively, the defense may argue that the state failed to offer sufficient proof as to one specific fact or detail, and try to use that to limit the charges that can go to the jury. The state’s response to such a motion can be fairly short as well, but the prosecutor should still briefly summarize the favorable evidence that supports the elements of the offense, and ask that the case be submitted to the jury.Ģ. The attorney may even acknowledge that he or she is just making the motion “for the record” and “we don’t need to be heard further.” This type of general motion is usually sufficient for appellate purposes. ![]() General motion: Defense attorneys often make a blanket assertion that “the state has not met its burden in the case” without offering specific reasons. The specific basis for a defendant’s motion to dismiss will obviously depend on the unique facts of each case, but most of them tend to fall into two categories:ġ. The same standard for evaluating a motion to dismiss for insufficient evidence applies regardless of when the motion is made, and regardless of the type of evidence (i.e., direct or circumstantial) offered by the state. The ultimate question for the judge is “whether a reasonable inference of defendant’s guilt may be drawn from the circumstances.” State v. Furthermore, the court should only evaluate whether sufficient evidence exists for the jury to consider the charge, not the weight of the evidence.
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