Getting a Criminal Charge Dismissed

Many cases are dismissed before a plea or trial. Learn about the common reasons why.

By , Attorney (New Mexico School of Law)
Updated May 20, 2022

Not every defendant who faces criminal charges will proceed to trial or a plea. Many cases end up being dismissed by the prosecutor or the court.

Can Criminal Charges Be Dismissed?

Yes. And, generally, the first task for a defense attorney in a criminal case is to determine whether there are any grounds on which the case could be dismissed before a plea or trial. Some grounds for dismissal include:

Let's review how these situations might play out.

    No Probable Cause to Arrest

    In order to arrest a person, police must have probable cause to believe that the person committed a crime. A police officer can't arrest a person simply because he has a gut feeling the person just robbed the liquor store down the street. The officer must have a reasonable belief based on objective, factual circumstances. For instance, after the liquor store robbery, an eyewitness to the robbery describes the robber to the police officer as a person wearing a red jacket with a dragon emblem and carrying a knife with a long blade and black handle. If the officer sees a person matching that description hiding in a doorway down the street, she likely has probable cause to arrest.

    If the officer arrested a person hiding in a doorway near the liquor store without any physical description from a witness or other basis to believe the person committed the crime, the officer made the arrest without probable cause and the charges may be dismissed. If, however, the prosecutor obtains other substantial evidence that tends to prove that the defendant robbed the store, the prosecutor can refile the charges or possibly avoid a dismissal.

    Mistake in Criminal Complaint

    When a law enforcement officer writes a criminal complaint or charging document, the officer must sign the document under oath, attesting to the truthfulness of the contents. State and local law direct what information a complaint or charging document must contain. If the complaint does not comply with state or local law because of a significant error or omission, the prosecutor cannot simply edit the document by hand and submit it to the court. The officer who wrote and signed the complaint, under oath, must make those changes. If the officer retires or leaves his job before the error is discovered or is unavailable for some other reason and no other officer was involved in the case, the prosecutor may have to dismiss the complaint.

    Illegal Stop or Search

    A law enforcement officer can only stop a vehicle or a person on the street under certain circumstances, such as if the driver is speeding or violating other traffic laws or the police officer reasonably suspects a crime is being committed. If an officer randomly stops a person or a car or makes a stop because of the driver's race, the stop is illegal and violates the person's constitutional rights.

    Police can search a person, car, or house with a search warrant or when an exception exists that allows a warrantless search. For instance, police can search a person without a warrant after arresting the person for a crime, or if an officer has a reasonable belief that the person is carrying a deadly weapon. Police can search a car without a warrant after arresting a driver for driving while intoxicated or another crime. Police can enter a house without a warrant in an emergency, such as after hearing shots being fired in the house.

    If police conduct a search without a warrant and no special circumstances permitted the search, no evidence gathered in the search can be used against the defendant to prove the crime. If this instance, the defense can request that the case be dismissed on the grounds that the prosecution has no evidence to prove the charges against the defendant.

    Insufficient Evidence

    If a defendant is arrested and charges are pending against him, the prosecutor must present the case to a grand jury or a judge to prove the charges are legit. Basically, the prosecutor must present evidence establishing probable cause to believe the defendant committed a crime. As with arrests, the evidence must show an objective, factual basis for believing that the defendant committed the crime. If the prosecutor doesn't meet this burden, the charges must be dismissed. In some cases, a prosecutor might conclude that not enough evidence exists to move forward in the case and dismiss the charges on their own.

    Unavailable Witness or Lost Evidence

    If a key witness is unavailable to testify or the prosecution loses important physical evidence, the prosecutor might have no choice but to dismiss the case for lack of evidence. In some cases, physical evidence is so important that, without it, the prosecutor cannot prove the case. If a witness disappears, dies, or refuses to testify on Fifth Amendment grounds (because his testimony may incriminate him, in that it shows that he also committed a crime), the prosecutor might have no case.

    Some cases also hinge on a witness being able to identify the defendant as the person who committed the crime. Without the identification, the other evidence might not be strong enough to get a conviction. If a witness realizes after first identifying the defendant that he or she is unsure and not able to identify the defendant at trial, the prosecutor might decide that, without the witness identification, not enough evidence exists to win at trial, and a dismissal is in order.

    In some cases, the defense will challenge the procedure police used to obtain the witness' identification of the defendant by challenging the way the police conducted a line-up or raising other issues with the witness identification process. If successful, the judge might not allow the witness to identify the defendant at trial.

    Can the Prosecutor Dismiss the Charges?

    On rare occasions, a prosecutor might agree to dismiss criminal charges where there are extenuating circumstances. For instance, a prosecutor might dismiss a minor charge (like a misdemeanor charge for trespassing or loitering) if the defendant has a clean record and perhaps the facts are questionable (did a police officer overreach in filing criminal charges rather than clearing an area of rowdy teenagers or partying adults?).

    Prosecutors can dismiss charges "without prejudice," which allows the prosecutor to refile the case at a later date within a certain time period. A prosecutor might agree to dismiss a minor charge as long as the defendant does not pick up any new charges or get into any trouble within one year. If the defendant does get arrested again, the prosecutor can refile the original charges.

    In very rare circumstances, if a victim requests that charges be dismissed, a prosecutor may agree to do so. Normally, the victim of a crime does not have the power to control whether a criminal case moves forward. However, a prosecutor has the discretion to consider what constitutes justice in a case, and the prosecutor is required to do what is just in criminal cases. This means that a prosecutor might decide to dismiss a sexual assault case at the victim's request because testifying at trial would cause the victim such emotional harm that the long-term effects would be more devastating than the rape itself.

    Can Charges Be Dismissed After a Successful Appeal?

    When thinking about getting charges dismissed, most of the time people are concerned with not going to trial or entering a plea, as the above scenarios explain. But there's another way to get charges dismissed, even if the case has gone to trial and the defendant has lost. A convicted defendant who wins his case on appeal can sometimes secure an order from the appellate court that the lower court (the trial court) dismiss the case after conviction or enter a judgment of acquittal (rather than retry it).

    Bad Arrest or Search

    An order to dismiss a case can occur when the appellate court, having reversed the conviction on the grounds of a bad search or arrest, examines what's left of the case and determines that there's not enough evidence to warrant another trial. For example, if the case is overturned based on insufficient evidence to support the defendant's arrest (and no other evidence suggests that the defendant would have been arrested anyway for this crime), the court may conclude that there is no remaining evidence to tie the defendant to the crime.

    Similarly, if the appellate court rules that a search was unconstitutional, and further rules that the evidence may not be considered, that may leave the prosecution with not enough evidence to support a finding of guilt on one or more elements of the charge.

    Insufficient Evidence to Support the Jury's Finding

    Now and then, an appellate court will reverse a finding of guilt on the grounds that the jury did not have enough evidence to support its conclusion. Most of the time, the defense will have asked the trial judge to enter a judgment of acquittal, before the case went to the jury, and the trial judge will have denied that motion. On appeal, the defendant makes the same argument; occasionally, he wins. The appellate court reverses and directs the trial judge to enter a judgment of acquittal.

    No Jurisdiction

    Courts can hear only those cases that they have the power to hear, which is given to them by legislators and the constitution. Now and then, a court oversteps its bounds and hears a case it has no right to hear. For example, federal courts can try cases that arise on federal property, but not state property. Imagine a robbery on land that the federal trial court thinks is owned by the government, but it turns out (on appeal) that the property is state land. The federal appellate court would overturn the conviction (leaving the state free to charge the offense in state court).

    Consult an Attorney

    If you are charged with a crime, contact a local attorney immediately. A criminal defense attorney can evaluate a criminal case and the evidence and determine whether there are grounds to file a motion to dismiss. There may be grounds for dismissing charges that are not mentioned here. The attorney also can contact and try to convince the prosecutor to dismiss the charges or try to negotiate an agreement to dismiss.

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