§ 10.01 Motion to Dismiss for Lack of a Prima Facie Case

§ 10.01

Motion to Dismiss for Lack of a Prima Facie Case

The Rule 12(d) motion, to dismiss for lack of a prima facie case, is the principal means of testing the prosecution's case early in the proceedings. The motion must specify "the factual elements of the offense which the defendant contends cannot be proven at trial."{1} The prosecution is then bound to establish "by affidavits, depositions, sworn oral testimony, or other admissible evidence that it has substantial, admissible evidence" of the challenged elements, "sufficient to prevent a grant of a motion for judgment of acquittal at the trial. . . ."{2} Any affidavits must be "made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify."{3} The sort of police affidavit that commonly accompanies an information, summarizing an investigation and reporting statements of other witnesses, is therefore usually not good enough.

The defense can cross-examine witnesses and introduce its own affidavits or other evidence.{4}

The motion must be filed by the same deadlines that apply to other pretrial motions - generally twenty-eight days after arraignment.{5}

A hearing is mandatory{6} and must be held prior to trial.{7} The standard for dismissal is the same as that for a judgment of acquittal at trial under V.R.Cr.P. 29: "whether, taking the evidence in the light most favorable to the state and excluding modifying evidence, the state has introduced evidence fairly and reasonably tending to show the defendant guilty beyond a reasonable doubt."{8} The prosecution does not have to make out a prima facie case rebutting affirmative defenses which the defendant has the burden of establishing, such as necessity, entrapment, and insanity{9} but probably does on "defenses" which the state has the burden of negating, such as alibi, diminished capacity,{10} and self-defense.{11}

Dismissal under the rule is without prejudice.{12} If the prosecution shows a prima facie case as to a lesser included offense, the court should dismiss as to the greater offense only and specify the lesser offense remaining to be tried.{13}

The prima facie hearing can serve as a useful defense discovery device when the right to examine witnesses by deposition has been denied or restricted.{14}


1. V.R.Cr.P. 12(d)(1).

2. V.R.Cr.P. 12(d)(2).

3. V.R.Cr.P. 12(d)(3)

4. V.R.Cr.P. 12(b)(2).

5. V.R.Cr.P. 12(c) and Reporter's Notes to the 1982 Amendment.

6. State v. Burnham, 145 Vt. 161, 164 (1984).

7. V.R.Cr.P. 12(d)(2).

8. State v. Cole, 150 Vt. 453, 455 (1988); State v. Norton, 147 Vt. 223, 229-30 (1986); State v. Burnham, 145 Vt. 161, 165 (1984) (quoting the Reporter's Notes to Rule 29(a)). See §32.13, infra.

9. See, respectively, State v. Baker, 154 Vt. 411, 414 (1990); State v. Messier, 145 Vt. 622 (1985); State v. Wilkins, 144 Vt. 22, 25 (1984). See § 32.05, infra.

10. State v. Messier, 145 Vt. 622, 628-29 (1985); State v. Smith, 136 Vt. 520, 527-28 (1978).

11. State v. Baker, 154 Vt. 411, 416 (1990); State v. Barrett, 128 Vt. 458, 460 (1970).

12. V.R.Cr.P. 12(b)(2).

13. V.R.Cr.P. 12(b)(2).

14. The Reporter's Notes to the former Rule 12(d)(1) characterize the prima facie motion's discovery function as redundant, but subsequent restrictions on the right to take depositions (see §§ 24.23-24.24, infra) make that judgment obsolete.