Many times, when we are hired as defense attorneys on criminal cases, clients often ask, is it possible to get my case dismissed? While the answer is often “it depends,” there are a lot of factors and strategies that go into whether or not to pursue that course of action. So, what are the five most common ways to get a case dismissed? Below is our list. While it isn’t all-encompassing, these five areas are ranked in order of most successful/common. At Banks & Brower, our Indianapolis criminal defense lawyers can help, call us today to schedule your free consultation. We are available 24/7 to take your call.
(1) Diversion, Conditional Discharge
When a newly hired client informs us that they have no criminal history (or only distant criminal history and no felonies), many times we will look to see if they are diversion eligible and/or capable of receiving a conditional discharge. Typically, only crimes involving misdemeanors or level 6/D felonies are eligible (although some counties have exceptions). They are both effectively the same thing and end in the same result, the only difference is the vehicle in which they arrive at that result. A diversion is a contract with the State of Indiana whereby you admit probable cause exists for your offense, you must stay out of trouble for a period of time (i.e. 6 months, a year, or two years), you must complete certain terms (i.e. community service, behavior classes, etc.), and if you do all of that successfully, the case is dismissed without a conviction — should you fail, they can resume prosecution. A conditional discharge is similar in that you have similar terms as a diversion, but it’s a guilty plea with a conviction under advisement. The guilty plea and conviction are only used if you fail to complete the terms. If you succeed, its dismissed. If you fail, there is an automatic conviction.
(2) Exclusion of Witnesses/Depositions
Often times in victim-related offenses, defense attorneys employ the use of depositions or taped statements (depending on the county). Why? Depositions are a great tool for defense attorneys to get key, State-witnesses under oath to see what they might say at trial. It locks them into statements so that if they ever change their testimony, they can be impeached at trial — calling into question their character for truthfulness. Yet, there is also another purpose that depositions provide. If a defense attorney knows that a victim may not want to participate in the prosecution, or the witnesses live far away and will probably not bother to return for the deposition, requesting a deposition may be the best way to get them removed as a potential witness. Many courts and jurisdictions have rules on how many “misses” a witness can have when they are subpoenaed to a deposition before sanctions can be employed — the most common being two. If they miss two depositions (or more depending on the judge/county), in a lot of counties, judges will exclude them as witnesses, thus eliminating the State’s ability to call them as a witness. If they are an essential witness (i.e. a victim or key eye witness), the State may not be able to proceed. Without a key witness, they may have to dismiss the case.
(3) Exclusion of Evidence/Suppressions
Whenever a defense attorney is hired on a new case, one of the first things they can do is to look to see if everything the police officers did was legal and within the protections of the US and Indiana Constitutions. If the defense attorney believes there may be issues with the legal standings for a search or seizure and/or traffic stop, by way of examples, they may look to file a suppression. More often than not, the defense attorney will conduct depositions/taped statements (depending on the county) in order to lock witnesses into specific testimony. If that testimony differs from other key witnesses, contradicts what is in the PC, or runs afoul of the applicable constitutional statutes, a possible suppression may be filed. At that point the judge will set the suppression for a hearing. At that hearing the defense attorney and the prosecutor will present evidence as to why they believe a suppression is warranted or not. After hearing the evidence, the judge will decide if a suppression is appropriate. If it is, and the judge grants the request, the Court may order any evidence that was received as a result of the illegal act by the police, “fruit of the poisonous tree.” Or, in other words, evidence that can’t be used in the prosecution — this can be statements, drugs, etc. When this happens, it can cripple a prosecutor’s case — rendering it impossible to proceed and leaving a dismissal the only option.
(4) Evidentiary Issues/Affirmative Defenses
Some times during the course of discovery phase of the case, the State of Indiana, by and through its Deputy Prosecutor, may realize their case is so weak, they can’t proceed. This can be after exhaustive investigatory measures are used. It could be after depositions. It could be after new, previously unknown witnesses come forward. It could be after realizing that the officers involved did something unethical or contrary to the constitution. There are countless reasons that might exist. Nevertheless, if a prosecutor believes that these issues are severe enough to call into question the authenticity of the prosecution, they may feel ethically obligated to dismiss the case. It may also be that an affirmative defense (i.e. necessity, self-defense, etc.) is raised by the defense, and during the course of the prosecution the prosecutor agrees that the defense is valid as well — thus resulting in a dismissal. There are a million different ways that a case can go south for a prosecutor, and assuming they remain objective and non-biased, an ethical prosecutor will realize when their case is so weak it can’t be pursued and will dismiss.
(5) Plea Negotiations/Lesser Included Merging of Counts
Last, but not least, plea negotiations are an easy way for a dismissal of charges. Many times, a plea agreement will call for pleading guilty to one count under one cause number. As a benefit of pleading guilty the prosecutor will agree to dismiss the remaining counts. If a defendant has multiple cases pending at once, their defense attorney may also be able to get whole cases dismissed as part of the plea as well. Lastly, after someone is convicted at trial, a judge may find that certain counts must merge with larger counts or be dismissed/vacated as they are lesser included offenses of the larger charges (i.e. misdemeanor battery is a lesser included of aggravated battery).
As with any criminal case, the best defense is great attorney. They will look to employ any one of these possibilities and/or all of them together. Should you need an attorney in and around Indianapolis or the State of Indiana, give the experienced former prosecutors at Banks & Brower, LLC, a call today. We are available 24/7/365 at info@banksbrower.com and 317.870.0019.