Upon motion of a defendant the court may dismiss an indictment in any of the following circumstances:
" When the names of the witnesses are not inserted at the foot of the indictment or information or endorsed thereon;
" When more than one offense is charged in a single count;
" When it does not describe a public offense;
" When it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other bar to the prosecution;
" When the grand jury which filed the indictment had no legal authority to inquire into the offense charged because it was not within the jurisdiction of the grand jury or because the court was without jurisdiction of the offense charged; and
" When an improper person was permitted to be present during the session of the grand jury while the charge embraced in the indictment was under consideration.
The above is not an exhaustive list.
A West Virginia motion to dismiss counts of indictment is a legal document filed by the defense in a criminal case, seeking the dismissal of certain charges brought against the defendant in an indictment. This motion argues that specific counts in the indictment should be dismissed due to various legal reasons, such as lack of evidence, constitutional violations, or prosecutorial misconduct. There are several types of West Virginia motions to dismiss counts of indictment that a defense attorney may utilize, depending on the circumstances of the case. Some common types include: 1. Motion to Dismiss for Insufficient Evidence: This motion asserts that the prosecution has failed to present enough evidence to support specific counts in the indictment. The defense argues that without sufficient evidence, the charges should be dismissed as they cannot meet the burden of proof beyond a reasonable doubt. 2. Motion to Dismiss for Constitutional Violations: This type of motion argues that the defendant's constitutional rights have been violated during the course of the investigation, arrest, or prosecution. Common constitutional violations may include illegal search and seizure, denial of due process, or violation of the defendant's right to counsel. The defense will argue that any evidence obtained through these violations should be suppressed, leading to the dismissal of related charges. 3. Motion to Dismiss for Double Jeopardy: This motion asserts that the defendant is being charged with offenses for which they have already been acquitted or convicted. It argues that prosecuting the defendant for the same offenses violates the protection against double jeopardy provided by the Fifth Amendment of the United States Constitution. 4. Motion to Dismiss for Selective or Vindictive Prosecution: This type of motion asserts that the defendant is being selectively or vindictively prosecuted based on improper motives, such as race, religion, or the defendant's exercise of their constitutional rights. The defense argues that the charges should be dismissed as they are the result of an unlawful prosecution strategy. 5. Motion to Dismiss for Prosecutorial Misconduct: This motion alleges that the prosecuting attorney acted improperly during the grand jury proceedings or the presentation of evidence to the grand jury, resulting in flawed or biased indictment. The defense seeks dismissal of certain counts in the indictment due to these alleged misconducts. It is important to note that the granting of a motion to dismiss counts of indictment in West Virginia is within the discretion of the judge. If the defense successfully convinces the judge that the charges should be dismissed based on the legal arguments presented, those counts will be dropped from the indictment, potentially shaping the outcome of the overall case.
