Legal Question in Criminal Law in California

"Notice of Defense"

What exactly is a "motion of defense", which you file with the DA's office requesting a hearing, object to the accusation upon the ground that it does not state acts or omissions upon which the agency may proceed and is indefinite or uncertain. I understand this is some form of administrative remedy.


Asked on 6/09/00, 4:22 pm

1 Answer from Attorneys
Steven Mandell Law Offices of Steven R. Mandell

Re: Motion for defense? No,

I think you're referring to a "demurrer," which challenges the accusatory pleading (e.g., the complaint) on the grounds that it is uncertain or that it doesn't state an act or omission upon which the prosecutor may proceed. It's not an administrative remedy, but a legal challenge to the pleading document. The judge in the criminal court will rule on the demurrer. If it's granted "with leave to amend," the prosecutor has the right to amend the complaint to fix it, so to speak. If it's granted "with prejudice," the prosecution is barred and you're home free.

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Answered on 7/30/00, 6:47 pm


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