It is never helpful to have a criminal record, so it makes sense that anyone with a pending criminal case would want to take action to get the charges dismissed. However, there is no procedure a criminal defendant can undertake that guarantees that the district attorney will agree to dismiss the charges. It helps to get an overview of the way the prosecutor evaluates a criminal case before filing charges and the different scenarios that may lead her to dismiss the charges.
The Path to the DA's Office
Every state has its own rules of criminal procedure and its own system of prosecuting crimes. However, many share the same structure. In general, a state's law enforcement agencies, like the sheriff's office, the highway police and the police department, play the initial role in enforcing the state laws. They respond to 911 calls and otherwise scout for and investigate crime occurring in their jurisdiction with the role of local law enforcement organizations varying, depending on the community served.
In many cases, law enforcement makes the first determination of whether a criminal case should be filed against someone. As they investigate a crime or track the actions of a criminal suspect, they prepare a file outlining their actions and all the evidence. When their investigation is complete, they send the file to the office of the district attorney (DA), often with recommendations regarding criminal charges.
Decision to File a Criminal Charge
Lawyers in the DA's office usually make the determination of whether to file criminal charges. The attorney in charge reviews the evidence in the investigation file and may send out the office's own detectives to do additional work. Then the attorney assesses the totality of the evidence and determines whether it presents "probable cause" to file a criminal action.
At that point, the district attorney exercises “prosecutorial discretion” and decides whether to file criminal charges. He must decide who to charge, what offenses to charge and what punishment to seek. A district attorney reviews the suspect’s past criminal record as well as all other circumstances of the crime.
He can file the charges recommended by the police, file other charges or can decide not to file any charges at all. Since the head district attorney is usually an elected office, politics can also play a role in these decisions.
Getting a Criminal Charge Dismissed
Many criminal charges are dismissed before trial for a variety of reasons ranging from an illegal search to loss of evidence. A person hoping to get criminal charges against her dismissed will do well to work with an experienced defense attorney who understands the grounds on which the case could be dismissed.
If an accused criminal wishes to get the charges dismissed, she must be able to show the DA that it is unlikely that the case will result in a conviction. She might establish that the police did not have probably cause to make an arrest, that the complaint against her was legally flowed or that the witnesses relied on by the prosecution have left town or are otherwise unavailable. A showing that the police lost some of the evidence or obtained the evidence illegally might also result in dismissed charges.
Of course, a criminal defendant would prefer to get the charges dismissed before the matter goes to trial. However, all is not lost if that proves impossible. It is possible for the prosecutor to dismiss the case at any stage of the proceeding, as the inadequacy of the evidence becomes clear. It is also possible for the defendant to be convicted at trial, then exonerated on appeal, at which point the charges against her are dismissed.