Why Won’t the Judge Dismiss My Case?

There are many possible outcomes to a criminal case, including a dismissal. However, dismissal is rare, and judges don’t often dismiss cases. So, if you are charged with a crime, it helps to understand how a case might get dismissed and why a dismissal – which everyone wants – often isn’t possible.

First Things First: What Does a Dismissal Mean?

When a criminal case is dismissed, all legal action against the defendant ceases.

A case can be dismissed at any time throughout the legal process, including before or during the trial, for various reasons. For example, a judge may dismiss a case if they believe there’s no legitimate legal basis for the charge(s), the state has failed to prove its case, or the defendant’s rights have been violated. Interestingly though, judges do not often do so on their own accord.

Rather, judges are sometimes asked by the district attorney to dismiss a case. This could be for various reasons. The prosecutor, as the party in charge of filing charges, also has the discretion to move to dismiss the charges if they believe it’s appropriate under the circumstances.

When a case is dismissed, it’s over — at least for the time being. Whether it re-opens in the future depends on whether it was dismissed with or without prejudice or if there is an agreement that bars re-filing by the state.

When a case is dismissed with prejudice, that is permanent; in other words, the prosecutor can never bring those charges again, ever.  In contrast, when a court dismisses a case “without prejudice”, then barring some other hurdle, the DA can still re-file the charges. Dismissed without prejudice is not permanent. Remember: most cases that are dismissed are dismissed without prejudice. Ask your lawyer to advise what is likely in the future if your case is dismissed without prejudice. 

Common Reasons Criminal Cases May Be Dismissed

Criminal cases can be dismissed for various reasons, including the following:

  • The defendant’s constitutional rights have been violated, including their Fourth and Fifth Amendment rights
  • Prosecutorial misconduct 
  • New evidence of innocence is discovered
  • Insufficient evidence has been offered to prove the charges
  • Victim recantation that is real, not bought and paid for
  • Lack of probable cause, although this is a very low burden
  • Procedural issues, such as denial of speedy trial
  • The statute of limitations has expired. This must be raised by the person facing the delayed charges, as some crimes have no time limitation. 

Though quite uncommon, a criminal court judge can decide to dismiss a case on their own or they can consider a motion for dismissal from the state or the defense. A strong defense attorney can pinpoint a reason to file a motion on your behalf and fight aggressively to try to get a dismissal.

Factors That Affect a Judge’s Dismissal Decision

Lack of Probable Cause

The very first opportunity to seek dismissal of a criminal case is at the very beginning. If your lawyer sees a criminal complaint that lacks even a bare bones statement of the elements of the crime, they must move to dismiss for lack of probable cause. These motions are not often successful and yet, it can cause a DA or a judge to pause and wonder why the case was filed in the first place. This type of motion can serve as a solid “shot across the bow” alerting all to the weaknesses in the case if it ever reaches a trial stage.

Burden of Proof

Another significant factor that determines whether a judge will dismiss a case is whether after the state puts in all of its evidence at trial and has met its very high burden of proof: proof beyond a reasonable doubt. In criminal cases, the state, that is, the prosecution, has the entire burden to do so and it never shifts to the defense. 

Bottom Line

Many clients ask their lawyer to get the case dropped, dismissed, etc. this is very uncommon in criminal cases, and if someone is charged with a crime, they should have a reasonable expectation that dismissal is unlikely and uncommon. 

Advocacy and Persuasion

A simple truth: criminal case dismissal is uncommon. But if you hire a qualified, respected defense attorney to defend you, you increase the already small odds of obtaining dismissal, if it is possible. If there are flaws in the case and if your lawyer can present them to a DA or judge succinctly, persuasively and with respect for the process, you might just get the case dropped.

If the judge doesn’t dismiss your case, it doesn’t mean your fate is sealed. Your defense lawyer will still work diligently to get you the best possible outcome. 

A Skilled Criminal Defense Attorney Can Assist You with Your Case

When you hire a criminal defense lawyer, their primary objective is to help achieve a satisfactory result for your case. When dismissal is the goal, a skilled attorney can help you present the strongest possible argument in court.

If you’ve been charged with a crime, Contact Attorney Christopher T. Van Wagner today and learn more about your legal options.

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Attorney Christopher T. Van Wagner is one of the most experienced and accomplished criminal defense attorneys in Wisconsin.

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