If someone has home video evidence to prove their innocence of NO probable cause against assault charges submitted by the police against them (claiming probable cause) how do they submit the video in a motion or petition before the preliminary hearing inquiry date to have the charges dismissed?


1 Answer 1


Video evidence can be made available to the prosecutor handling a case to encourage the prosecutor to voluntarily dismiss a futile criminal prosecution.

If this effort is unsuccessful, the forum in which evidence that there is probable cause to believe that a crime was committed or not is a preliminary hearing before a judge, at which both the prosecution and the defense can present evidence for precisely that purpose (in cases where a preliminary hearing is available, generally only in felony cases).

Judges do not rule on competing presentations of evidence outside evidentiary hearings such as a preliminary hearing (or, for example, a suppression hearing where evidence is taken on whether an illegal search or seizure or confession occurred).

Pretrial motion practice not involving a hearing in criminal cases is reserved for issues that can be addressed without resolving evidentiary disputes. Evidentiary hearings allow issues like the admissibility and authenticity of the evidence tendered to be raised by the prosecution and the defense.

In cases where there is no right to a preliminary hearing (e.g. most misdemeanor cases), a probable cause determination from a judge cannot be made prior to trial based upon evidence such as a videotape and that determination needs to be made at the trial itself.

  • Is this the sort of thing that might vary from state to state?
    – nick012000
    Commented Oct 9, 2023 at 20:56
  • @nick012000 Some specific could vary (e.g. when a preliminary hearing is available at all). But judges don't consider contested evidentiary issues on the pleadings in criminal cases in all U.S. jurisdictions of which I am aware.
    – ohwilleke
    Commented Oct 9, 2023 at 20:59
  • What benefit to the defendant could there be to have it dismissed earlier than a preliminary hearing, even if there is actually no possible way to do so? Is there any benefit? Commented Oct 9, 2023 at 23:04
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    @Seekinganswers If it was possible to do so, e.g., by convincing a DA to dismiss the charges based on the video, you would save a lot of criminal defense attorney costs related to a preliminary hearing, you would remove the negative impact of having a criminal prosecuting pending, you might be released from jail earlier if you couldn't post bond, and you would be freed from bond conditions if you did post bond. The faster a criminal defendant gets the charges dismissed the better for the defendant. And in most states people against whom charges are dismissed get no compensation.
    – ohwilleke
    Commented Oct 9, 2023 at 23:07

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