Whether a defendant is guilty or innocent of a criminal charge, it goes without saying that every defendant wants the criminal charge dismissed. So how do you go about getting a criminal charge dismissed? Well the strategy for getting a criminal charge dismissed will vary depending on the type of case and the circumstances surrounding the case. But the process of getting the case dismissed can be done in one of three ways.
Prosecutor May Dismiss a Case
The first way of getting a case dismissed is to get the prosecuting attorney to dismiss the case. The prosecutor has discretion to make application to the court for a dismissal. The prosecutor filed the charge, and so the prosecutor can dismiss the charge. As you can imagine, more often that not a prosecutor will not just up and dismiss a case that they already choose to file. An analogous circumstance would be a plaintiff who has filed a lawsuit. A plaintiff can dismiss a lawsuit if they choose, but most plaintiffs are not going to dismiss a lawsuit that could benefit them.
Obviously the easiest way to get a criminal charge dismissed is to have a prosecutor dismiss it, but it is also the least likely way of getting a lawsuit dismissed. So if you were planning on going to court and telling the prosecutor that the case should be dismissed, you might want to rethink your strategy. The prosecutor is by definition the one person who wants to see the charge stick, it is their job to see that the charge sticks.
Judge may dismiss a case
The second way of getting a lawsuit dismissed is to ask the judge to dismiss the case. Until you get to a trial, a judge is normally not a ‘finder of fact’. The judge does not weigh evidence, he simply makes legal conclusions. The prosector must have probable cause on all the elements of a crime. A criminal defense attorney may file a motion to dismiss a case based on the fact that the prosecutor does not have probable cause as to every element of the charge.
For example, imagine that a professional boxer was charged with battery for hitting another professional boxer in a boxing match. Now some of the elements of battery are there, for example he struck another person, but one of the elements that is completely missing from the case is ‘non-consensual’ contact. The defense attorney could make a motion to dismiss the case based on the fact that the prosecutor cannot prove the ‘non-consensual’ contact element of the charge by any standard. Now imagine a case where a defendant is charged with battery because the victim claims the defendant hit the victim in the nose, and the victim didn’t want to be hit in the nose, and the defendant claims that the victim is lying because the defendant never hit the victim at all. This is a factual dispute, determining who hit who is going to require judging the character of the witnesses, weighing all the evidence, and coming to a factual determination. A judge will not do this before a trial, even if the weight of the evidence clearly appears to be in favor of the defendant.
A judge will only dismiss a case pursuant to legal issues (not factual issues), and the legal issue is dispositive of the case. So for example, if your attorney files a motion to suppress based on an illegal stop or search, and all of the State’s evidence is suppressed, then the judge will dismiss the case for lack of evidence to proceed. But there are many legal issues that the judge will decide that are not dispositive of the case. Some evidence may be excluded for example, but there is still some evidence that remains that could support a conviction. In that case the judge will not dismiss the case, and the case will proceed to trial.
Jury (or Trier of Fact) May Dismiss a Case
The final way, and most common way, of getting a case dismissed is to get a jury to enter a judgment of acquittal. The jury sits as a trier of fact, they will weigh all the evidence, and decide who to believe and what the ultimate facts are. The prosecutor must prove every element of the charges beyond a reasonable doubt. This means that the defendant should have an advantage at trial since the burden rests on the prosecutor of making a case, not on the defendant to prove his innocence. If the prosecutor fails to prove every element beyond a reasonable doubt, the jury will be instructed to make a finding of ‘not guilty.’
A judge may sit as a trier of fact as well. While the judge cannot dismiss a case based on a factual dispute prior to trial, if the defendant chooses to have the judge sit as the trier of fact at a trial, rather than a jury, then the judge can make factual determinations and enter a judgment of acquittal if he believes that the case was not proven beyond a reasonable doubt. This is what we call a ‘court trial’ rather than a ‘jury trial’. Whether to go a court trial or jury trial is a decision you should speak with an attorney about, preferably an attorney who has practiced in front of the judge. The most common type of trial is a jury trial, and most of the time a criminal defense attorney will suggest going to jury trial rather than a court trial. It is not uncommon though for a defendant to choose a court trial.
Dismissal or Plea Deal?
If you want the case dismissed, then you should be ready to go to a jury trial. That is not to say you should not attempt to get the prosecutor or judge to dismiss the case, you may very well have one of the few cases where this is possible, and your attorney should look for every way of getting your case dismissed. But the likelihood that your case will be dismissed prior to trial is slim. Your chances of having the case dismissed at jury trial are much greater.
If you want to avoid going to jury trial, then you will have to be flexible and willing to make a plea deal with the prosecuting attorney. If you choose to go this route you will likely plead to something, even if it isn’t what you were originally charged with.