Effects of a Dismissal of a Criminal Case on the

Administrative Disciplinary Case

Getting a Criminal Charge Dismissed

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

 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 defendant
committed the crime, and
 loss of evidence necessary to prove defendant committed the crime.

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 cannot arrest a person
simply because he has a gut feeling that the person just robbed the liquor
store down the street. The officer must have a reasonable belief based on
objective factual circumstances that the person robbed the store. For
instance, after the liquor store robbery, an eye witness to the robbery
describes the robber to the police officer as a person wearing a red jacket
with a dragon emblem and boots and carrying a knife with a long blade and
a black handle. If the officer sees a person matching that description hiding
in a doorway down the street, he likely has probable cause to arrest.
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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
comport 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.
A law enforcement officer can stop a vehicle or a person on the
street under only 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
the stop because a person in a car is African-American or looks Middle
Eastern, the stop is illegal and violates the person’s constitutional rights.
Police can search a person, a car, or house only if they have a search
warrant or, without a warrant, under certain circumstances. Police can
search a person, for example, 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 other 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. If the court finds that a stop or search was illegal
and the evidence is inadmissible, 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.

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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 and show that
the prosecution has enough evidence to establish 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 grand jury or the judge do not find probable
cause, then the charges must be dismissed. when prosecutors have very
limited evidence against a defendant in a criminal case, they may conclude
that they do not have enough evidence to move forward in the case and
dismiss the charges on their own.

Unavailable Witness or Lost Evidence

If a key witness in a criminal case is unavailable to testify or the

prosecution loses important physical evidence, the prosecutor may have no
choice but to dismiss the case because there is not enough evidence to
prove guilt beyond a reasonable doubt. 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 may not have enough evidence without
the witness’ testimony.
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 to identify the defendant at trial, the prosecutor might decide that,
without the witness identification, there is not enough evidence 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
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identification process. If the judge finds the police conducted a line-up or
other identification process improperly, the judge may not allow the witness
to identify the defendant at trial.

Prosecutor’s Discretion

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 there are
questions about the facts (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 re-file 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 re-
file 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. It is the
state or government that “presses charges” and the victim cannot decide
“not to press charges.” However, a prosecutor has 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.

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
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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 or enter a judgment of acquittal (rather than retry it).
A 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 is 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,
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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). A trial in state
court would not involve a violation of double jeopardy, because the federal
and state courts are different sovereigns.