The delay of an investigation or prosecution of a criminal matter may violate a defendant’s constitutional as well as statutory rights. 

An accused is entitled to be protected by the speedy trial provisions of the U.S. Constitution as well as the States Constitution.  When these rights are not afforded to a defendant, one of his options is to make a Motion to Dismiss the case against him.

Before a motion to dismiss can be made, certain be strategic considerations should be made, because a motion can have certain drawbacks.  First, it may be the prosecutions record that may be used to impeach future testimony.  Second, it may provide the prosecution with more discovery that can be used against the accused later in the proceedings. 

Even though a motion to dismiss can be made either orally or written, it is better practice to do so in writing.

The prosecution will generally raise the issue that the delay in prosecuting or investigating the case was justified.  Many theories have been provided by prosecutors to justify a delay in prosecution and investigation on a case, but the evidence that generally justifies a delay is when an accused own acts is the cause for the delay in the investigation.

If the prosecution was not commenced within the period of time provided by the appropriate statute of limitations, and the statute has not been tolled or delayed by some legitimate reasons, then the criminal proceedings must be terminated.

When a defendant makes a motion a pretrial motion based on the expiration of the statute of limitations, the defendant has the burden to prove that the statute has expired.  Different crimes have different statute of limitations and the statute that applies is generally determined by the reference to the maximum sentence or punishment possible under the specific statute.

For purpose of the statute of limitations, a prosecution is commenced when one of the following occurs: An indictment or information is filed, a case is certified to the Superior Court, a misdemeanor complaint is filed in the inferior court, or a arrest warrant or bench warrant is issued.

The prosecution may attempt to show that the statute of limitations was tolled. The tolling occurs when certain circumstances exist, the statute of limitations may be extended by the period of time that such circumstances are in existence.

 

Time Limitations in the Arraignment

An arraignment is when the defendant is brought before the court and is advised of the charges and his constitutional rights.  After an accused is arrested, he must be brought to court for arraignment, without any unnecessary delay, within two court days of his arrest.

 

Time Limitations in the PreLiminary Hearing

A preliminary hearing is a hearing where the prosecution must show that there is strong suspicion that a crime was committed and that it was committed by this defendant.  A preliminary hearing must be held within 10 court days of the arraignment unless the defendant waives that right.  If the preliminary hearing is not held within the 10 days required by law, the case must be dismissed.

If the preliminary hearing is delayed beyond the 10 day period for good cause, the defendant may be released on his own recognizance.

 

Time Limitations in the Trial

The general rule is that a defendant must be brought to trial within 60 calendar days of his arraignment, on felony cases.  In a misdemeanor case, the defendant must be brought to trial if he is in custody, within 30 days and if out of custody within 45 days.

Dismissal is required only if a defendant is not brought to trial within statutory time limits without good cause.  Good cause may be determined on many different reasons.  Some examples of good cause are problems involving counsel, absence of judge, court congestion, unavailable witnesses.

 

Time Limitations when Warrants are issued

In felony cases, when a defendant has been ordered to appear in Superior Court for a trial and fails to do so, resulting in a bench warrant being issued, a new 60 calendar day period begins to run from the date on which the defendant next appears.

If the warrant is issued and is held by the court, that is not released into the system, then the statute does not apply.

When there is a violation of the 60 day rule, this entitles the defendant to a dismissal unless there is good cause shown for the delay by the prosecution.  The defendant must not waive his rights to a speedy trial and must object to a continuance by the prosecution and then move to dismiss if the delays are violating the constitutional rights.