Summary Dismissals: comments

Courts sometimes reject a criminal defendant's motion to dismiss on the ground that there is no summary judgment in criminal procedure. This Comment challenges that conventional wisdom, showing how most courts of appeals actually recognize the so-called "summary dismissal" under Federal Rule of Criminal Procedure 12(b)(2), which permits motions raising “any defense, objection, or request that the court can determine without a trial of the general issue.” Like summary judgment, these dismissals allow the parties to litigate pure questions of law when there are no disputes about the material facts. The analogy is nonetheless imperfect, because dismissals (unlike judgments) lack preclusive double-jeopardy effect.

This Comment surveys the circuit split about summary dismissals, proposes a way of harmonizing the courts' disparate positions, and defends summary dismissal as a viable way for defense counsel to test the strength of the government's legal theory before trial.

Suppose a criminal defendant moves to dismiss an indictment and stipulates to the government's factual allegations. The burden shifts to the government to show a need for further factual inquiry - either through a full proffer of its evidence at trial or through in camera review of the disputed facts. If the government cannot make this showing, it would have to defeat the defendant's challenge to its legal theory to avoid having the indictment dismissed. This procedure, similar but not identical to summary judgment under Federal Rule of Civil Procedure 56, serves judicial economy, gives defendants ex ante information about the expected payoffs of pleading guilty or going to trial, and preserves the government's right to appeal.