I am working on my response to a motion to dismiss a civil case under Rule 12(c), which permits a judgment on the pleadings to be granted when, taking all the allegations as true, the moving party is entitled to judgment as a matter of law.  This is a civil case, and the practice in civil cases is different than in criminal cases.  In criminal cases I am often asked why the judge doesn’t just dismiss the case. Many defendants are simply certain that the judge will read something and understand immediately that they have been unfairly charged. After that revelation it is only a short jump to certain dismissal. OK – here’s the bad news – it doesn’t work that way.

If you have been charged in a criminal case a court has already found that there is probable cause to believe you committed a crime.  In a felony case, a grand jury has found probable cause or a magistrate judge did at the preliminary hearing.  So it is pretty unlikely that the case will simply be thrown out before trial, but it actually could happen.  Rule 48 of the Idaho Criminal Rules permits a judge to dismiss a case in the interests of justice (which really does mean any reason) either on motion by the defendant or on his own motion. If the case is dismissed by the judge it may be re-filed if it is a felony, but not so if a misdemeanor.  If it gets dismissed as a misdemeanor, it is gone for good.

But does this happen? Not often. Judges presume that the prosecutor knows more about the case than he or she does, and that is usually the case.  So the Court is more likely to let the prosecutor try to prove the case. The best hope for a "dismissal" is the motion for Judgment of Acquittal based on Criminal Rule 28.  A judge can decide to dismiss after hearing the evidence and concluding that no reasonable trier of fact could conclude there is proof of guilt.  Last summer I had this happen twice – two different judges – acquitted my clients in criminal cases, one a felony and the other a misdemeanor.  If you go to trial you want to make certain that your criminal defense lawyer moves the court to order your acquittal at the conclusion of the State’s case.  Just look at your lawyer and say "Rule 28?"  If he or she doesn’t do it ask them why!