![]() 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. The defendant may also file a motion to dismiss based on violation of their Sixth Amendment or state right to a speedy trial.Likewise, if the state interrogates a defendant but failed to give Miranda warnings or continued questioning following the defendant’s invocation of their right to remain silent or their right to counsel, the interrogation violates the defendant’s Fifth Amendment rights and any information obtained cannot support the indictment. ![]()
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