How Do Criminal Charges Get Dropped?


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. Generally, the first task for a defence 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:

  • lack of probable cause to arrest
  • an improper criminal complaint or charging document
  • an illegal stop or search
  • lack of evidence to prove the defendant committed the crime
  • an unavailable witness who is necessary to prove the defendant committed the crime, and
  • loss of evidence necessary to prove the defendant committed the crime.

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, they likely have probable cause to arrest. However, 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.


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.

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 defence 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 misdemeanour 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.

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).

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