A demurrer to evidence is a motion to dismiss the case on the ground that, based on the evidence the other party has presented, they have shown no right to relief. In a civil case, the defendant may file it after the plaintiff rests; if granted, the case is dismissed, and if reversed on appeal, the defendant loses the right to present evidence. In a criminal case, the accused may file it after the prosecution rests, with or without leave of court; without leave, and if denied, the accused waives the right to present evidence. It is a powerful but risky remedy.
What if, after the other side has presented all its evidence, that evidence is simply not enough? Rather than go through the motions of a defense, a party can ask the court to dismiss right then — through a demurrer to evidence.
What a Demurrer Is
A demurrer to evidence is a motion to dismiss filed after the opposing party has completed the presentation of its evidence (rested its case), on the ground that upon the facts and the law, that party has shown no right to relief. In essence, it argues: “Even taking your evidence at its best, you have not proven your case, so there is nothing for me to answer.” It is a way to end a weak case early.
Demurrer in Civil Cases
In a civil case, after the plaintiff rests, the defendant may move for dismissal by demurrer, arguing the plaintiff’s evidence is insufficient. The stakes are set by what happens on appeal:
- If the demurrer is granted (case dismissed) but the plaintiff appeals and the dismissal is reversed, the defendant loses the right to present evidence — judgment may be rendered against them on the plaintiff’s evidence. This is the price of the gamble.
- If the demurrer is denied, the defendant simply proceeds to present their own evidence.
Demurrer in Criminal Cases
In a criminal case, after the prosecution rests, the accused may file a demurrer to evidence, and here a critical distinction applies — with or without leave of court:
- With leave of court: if the demurrer is denied, the accused may still present evidence in their defense. This is the safer route.
- Without leave of court: if the demurrer is denied, the accused waives the right to present evidence and submits the case for judgment on the prosecution’s evidence. This is a serious risk.
The court may also, in a criminal case, dismiss on its own initiative after giving the prosecution the chance to be heard. Because a demurrer granted in a criminal case results in an acquittal (which the prosecution generally cannot appeal due to double jeopardy), it is a coveted but carefully guarded remedy.
The Strategic Calculus
A demurrer is powerful because it can end the case without the defense presenting anything — saving time and risk. But it is double-edged:
- In civil cases, a granted-then-reversed demurrer forfeits the defense evidence;
- In criminal cases, a demurrer without leave that is denied forfeits the accused’s right to defend.
So a demurrer should be filed only when the other side’s evidence is genuinely and clearly insufficient, not as a routine gamble.
Practical Advice
- Consider a demurrer only when the opposing evidence is clearly deficient — a marginal case is a poor candidate for the risk.
- In a criminal case, generally seek leave of court so a denial does not cost you the right to present a defense.
- Weigh the appeal risk in civil cases before betting the case on a demurrer.
Frequently Asked Questions
What is a demurrer to evidence? A motion to dismiss filed after the opposing party has rested its case, arguing that on the evidence presented, that party has shown no right to relief. It seeks to end a weak case early.
What is the risk of a demurrer in a civil case? If the demurrer is granted but reversed on the plaintiff's appeal, the defendant loses the right to present evidence, and judgment may be rendered on the plaintiff's evidence alone.
What is the difference between filing with and without leave of court in a criminal case? With leave, if the demurrer is denied, the accused may still present a defense. Without leave, if denied, the accused waives the right to present evidence and the case is submitted on the prosecution's evidence.
Can the prosecution appeal if a criminal demurrer is granted? Generally no. A demurrer granted in a criminal case results in an acquittal, which the prosecution usually cannot appeal because of double jeopardy.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If the evidence against you is weak, a demurrer may end the case, and our firm can weigh the risks and file it properly. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or send an email to vivasnobles@gmail.com. We look forward to hearing from you.