I am a big fan of filing a motion to dismiss the indictment. The motion will rarely be won but it could expose weakness in the State’s case that could lead to further plea negotiations. For example, I filed a motion to dismiss the indictment in a child pornography distribution case. When we conferenced the case with the judge, he indicated that we had a good case and that the State should strongly consider taking state prison time off the table. The judge, being a talented litigator before he became a judge, gave great insight into the State’s case. In fact, we strongly considered a bench trial as a result. Thus, even though we lost the motion, it really helped open a number of avenues for discussion that were not on the table previously.
There are number of areas for the defense to attack the indictment including but not limited to: failure to present Hogan evidence, presenting prejudicial evidence, failure to explain the law properly or completely as well as failure to present enough facts to sustain the charge. Keep in mind that not all problems with the indictment are fatal. While rare, I have seen cases where the State re-presented the case to the grand jury to cure the defects in the indictment.