According to Rule 907 (Rules Applicable to Courts Martial), a motion to dismiss is a motion to discontinue a prosecution of one or more criminal charges and specifications on grounds that can be resolved without trial on the general question of guilt. An application may be based on compelling grounds (e.g. lack of jurisdiction or failure to report a criminal offence) or grounds on which it may be waived (denial of the right to a speedy trial, statute of limitations, double punishment, i.e. a person has already been brought before a court martial or federal civil court for the same offence, pardon or grant of immunity). Specifications are sometimes referred to as “charges” or separate cases of a particular crime that are related to specific factual evidence. An application may seek to reject these specifications, especially if it is so erroneous as to significantly mislead the defendant, or if it is multiple. The PSC has a generic application form that allows you to submit a very simple application. The form is available for free in the Self-Help Center or you can download it by clicking on one of the formats under the form title below. Keep in mind that this generic form may need to be modified depending on your case and situation as well as the type of application you are submitting. In the application, you try to prove (through affidavits, documents and other evidence) that there are no more real facts on the merits to go to court and that you are entitled to a judgment as a point of law.
In all cases, the non-applicant generally has the opportunity to submit and serve documents that oppose the application. In addition, most jurisdictions give the plaintiff time to file counter-documents refuting the arguments put forward in the opposition. An application for a new trial seeks the setting aside or annulment of the decision or judgment of a court or jury. Such a request shall be made by a party who is not satisfied with the final outcome of the proceedings. This application must be based on a clerical error in the court`s handling of the proceedings, such as admitting or excluding material evidence or giving false instructions to the jury. Generally, the application is filed shortly after the main hearing (7 to 30 days) and decided before an appeal is filed. In some jurisdictions, a request for a new trial that is not decided within a certain period of time is automatically considered rejected. As part of your application, you must make an uncontested finding of fact to the court. Indicate each undisputed fact separately in a separately numbered paragraph and mention any evidence to support this fact. They can refer to any evidence that the court might consider if there was a trial. A motion requires a hearing or does not require a hearing, and the decision to hold a hearing on specific applications may be made by the judge on a case-by-case basis. You can request a hearing on your application.
A motion to set aside the judgment is another motion that can be filed after a judgment or judgment in a case has been announced. This application is an application to the court to set aside or set aside a judgment or judgment previously rendered in the case. Such a request is usually made if, after the conclusion of the proceedings, new evidence emerges that casts doubt on the original judgment. Consequently, an application for annulment of the judgment cannot normally be made on grounds which the court has already considered at the initial trial. A unique aspect of an application to set aside the judgment is that it can be filed long after a judgment has been rendered, even years later. A motion for n.o.v. (non-obstante veredicto) judgment is filed after the jury has rendered its verdict. Request for judgment n.o.v. Is made by the accused and asks the judge to overturn the jury`s verdict. This is a rare request that is only made when there are no reasonable grounds on which the jury could have reached its verdict, such as when the jury renders a guilty verdict even if the evidence clearly proves that the accused could not have committed the crime in question. Such a motion can only be used to overturn a guilty verdict, which is why it is filed by the defence.
For example, if a jury finds a finding of not guilty, the prosecution cannot file a motion for a n.o.v. verdict asking the judge to change that verdict to a guilty verdict. Courts usually have specific requirements for filing an application, so consult your lawyer or check the rules of local courts to understand what you will need if you continue. In Hawaii, for example, the Code of Civil Procedure lists the following application requirements: a citation of a rule or statute authorizing the application, a memorandum in support of the application, attachment of all required affidavits and exhibits, a specific request for legal protection, confirmation of service, and various explanations. Your application must also include a section on legal arguments that analyzes the facts and law and explains the basis of the claim. The court will likely require a hearing on the application so that the judge can question the parties (or their lawyers) about this analysis. When you make your application, the Registrar of the Tribunal will include the date, time and location of the hearing in your application. You must then “serve” (by mail) a copy of your submitted application (including all evidence and the date, time and place of the hearing) on all other parties to the matter. If a party is represented by a lawyer, send the application directly to the law firm. If the prosecution cannot prove its case or if there is a fatal flaw in its evidence, it may be the prosecution itself that is asking the court to stop laying charges against the accused. This type of request is called a nolle prosequi application, which literally means that the prosecutor`s office has decided not to prosecute.
This request is often made when new evidence has come to light that proves the innocence of the accused or reveals a serious error in the prosecution file. A nolle prose application is essentially the prosecutor`s office, which asks the judge to dismiss the case because the accused is innocent or there is clearly not enough evidence to lead to a conviction. A request for a retrial is another application that is filed after the judgment has been pronounced. Any party may file a request for a new proceeding if it considers that a material error was made in the course of the proceeding that requires a new hearing. For example, evidence that had already been excluded on the basis of an in limine application may have been presented during the trial. An application for a new procedure is not an application for modification or annulment of the judgment. In fact, the new trial could result in the same verdict as the first. In many jurisdictions, and unlike an application to set aside the judgment, there are time limits for filing a request for a new trial, and failure to comply with these deadlines could result in the automatic postponement of the judgment of the proceedings. You should discuss your evidence in your statement of points and authorities, attach it to your application, file it with the court, and serve it on the other party. (CBMP 6(d); JCRCP 6(d).) An in limine application addresses the question of what evidence can and cannot be presented to a jury in court.
Instead of exposing a jury to biased evidence that could later be ruled out of order, a motion in limine ensures that this evidence is not presented to the jury in the first place. An in limine motion helps give an accused a fair trial, which is less certain if the jury is simply asked to ignore the evidence to which it has already been exposed. For example, in a criminal case, the prosecution may refer to the previous conviction of an accused for a crime that has nothing to do with the crime being tried. While the defence may argue that reference to this previous conviction should not be permitted because it is not relevant to the current case, the jury will have already been informed that such a conviction exists, even if the judge upholds the objection and orders the jury to ignore the information.