The Law Offices

HOW A CRIMINAL LAWYER GETS A CASE DISMISSED

A skilled criminal defense attorney can have a tremendous impact on what happens to a case, including getting the case dismissed. The primary methods of engineering a dismissal are as follows: (1) pre-filing intervention to effect police reports and investigation in the client's favor; (2) defense investigation that uncovers key facts completely undermining the prosecution's case; and (3) uncovering an error in the prosecutor's legal analysis of the evidence and procedure leading to dismissal motion (legal pleading).

(1) DISMISSAL STRATEGY ONE: PRE-FILING INTERVENTION

When a client calls the law office when he or she believes that an investigation has commenced, the criminal attorney can have the greatest impact on the outcome of the investigation, and prevent charges from issuing. The attorney can also implant weaknesses in the prosecution theories, such that, if charges do issue, the case would stand on weak legs. It is a fact of modern life in our prosecutorial society that the bias of law enforcement is to recommend charges. Once the law enforcement agency believes a crime has occurred, its agents will tend to look for ways to make evidence appear criminal. They will couch their descriptions of events in the police reports in incriminating language. They will make statements like, "Suspect A was hesitant to answer, leading me to believe he was evading my question, and his answers appeared inconsistent." Unless you are represented, it is extremely dangerous to utter a single word to any law enforcement agent.

When law enforcement agents interrogate suspects, they make obvious use of ploys, gimmicks, and mind games attempting to extract the answers they want. The will lie, and say, "we know you did it; we have evidence," when they don't; or they will say, "your friend gave you up," when he didn't. Another tactic law enforcement uses is to ask a question using part of a suspect's previous answer coupled with their own assumption twisting the meaning of the answer. For example, the suspect may say, "I wouldn't say I hit him; I just like... ran into him." Before you can say "on accident" the agent will interrupt you with the question, "what were you thinking when you ran him down? You hate him, admit it; he wasn't nice to you; he deserved it, right?" While you stutter and stammer searching for which rapid fire question to answer, the agent will accuse you, "don't be hesitant, if you are innocent you'll tell the truth, and I think you are hiding something; I don't think you have any credibility. The only way to clear this up is for you to come clean and tell me why you ran him down."

These tactics are not well designed get accurate information; they are better suited to coercing pre-selected answers. Therefore, it is imperative for a suspect under investigation to speak to law enforcement only through an attorney. From this lawyer's perspective, no person has ever helped his or her own situation by speaking for themselves to law enforcement. Remember, the government is not looking to find out the truth; they are looking for evidence that meets their agendas. If evidence could be misconstrued to make a person look guilty, even if that person is factually innocent, that person will face charges. I know from listening to recordings of police interrogations that even seasoned inspectors look at their job as "a game." The game is cat and mouse.

What a skilled attorney can do at these early stages of a case is to interrupt the police officer while he or she is conducting interrogations. He will be able to make sure that your answers come out succinctly and clearly, rather than choppy. He will be able to prevent surprise tactics from tripping you up. Because an attorney is present, they will not be able to use sleep deprivation, hunger, thirst and the urge to use the urinal against you. More importantly, the attorney will ensure that facts helpful to his client are placed with clarity in the incident reports and interview recordings. These methods can undermine the underhanded tactics designed to incriminate you.

The best way to defeat a prosecution is to nip it in the bud. Early attorney intervention during law enforcement investigations can prevent charges from issuing in the first place.

(2) DISMISSAL STRATEGY TWO: DEFENSE INVESTIGATION

There are times when law enforcement do not question the suspect, and charges issue without the client's knowledge. The most common situation is where someone is arrested and learns very little about the investigation into the case. At this time, when an attorney is retained, swift action and field work is required. The most effective means of defeating a prosecution once charges have issued is to investigate facts that would undermine the basis for the prosecution.

As soon as the defense attorney is retained, it is imperative for him to conduct extensive interviews with the client. When leads are uncovered, the attorney should follow-up on them. One of the best opportunities to be most effective presents itself when the defense attorney learns there may be a witness available who has information that could completely discredit a key prosecution witness. Prosecutors fancy themselves as winners, and believe they are supposed to win every case. The possibility of losing a case as a result of an embarrassing open court impeachment of their key witness, results in dismissals.

Take the example of a fraud prosecution against the employee of a business: the prosecution's case hinges on the testimony of the business owner who detailed all the money stolen by the client. Investigation uncovered an extramarital affair the business owner was having during the period of time his alleged losses occurred. Once the defense was able to corroborate the affair it was able to theorize that the business owner was spending his business money on his extravagant rendezvous. The potential of this information completely undermines the prosecution's case and resulted in a dismissal.

Another example is the case of a police chase where the client incurred charges of evading the police. The prosecution had to prove that the client knowingly evaded the police. Defense investigation uncovered a medical examiner's report that the client had a methamphetamine in his blood at the time of the arrest. If the client was high at the time of the arrest, then he may not have known that he was being pursued. His actions may have been charged under some other theory, but they weren't. Because he was charged with evading, the charge was dismissed.

Defense investigation is the most common and very effective way to achieve a dismissal of a prosecution case. Prosecutors hate to lose, and nothing deflates the prosecutorial blimp faster than uncovering evidence that would not only make a prosecutor lose, but cause embarrassment as well.

(3) DISMISSAL STRATEGY THREE: LAW AND MOTION

The third method an attorney can use to get a case dismissed win a dismissal motion, either pre-trial, during trial or on appeal. This area of practice is highly technical, and involves constitutional law and the law of criminal law, criminal procedure and evidence (among other things). Suffice it to say that a high-profile or serious case can have a long life, where the prosecutors and law enforcement agencies take many actions. Each action the government makes creates another potentional legal basis for a dismissal.

Demurrers, motions to suppress, motions to dismiss for prosecutorial misconduct, violations of the Discovery Act, violations of the Speedy Trial Act, violations of constitutional rights, etc., are all viable dismissal opportunities in any case. Skilled and knowledgeable criminal defense attorneys are required to spot the issues and exploit them. This area of the law is so involved it would take reams of text to describe it all.

In sum, dismissals come in a variety of recipes. The kind that "separates the men from the boys," so to speak, and distinguishes the everyday lawyer from the high-powered criminal defense attorney is the kind that involves counter-investigation and attorney intervention into the development of the evidence. Good criminal defense attorneys know the law. Great criminal trial attorneys see what others do not; they see the future. Great criminal defense lawyers can visualize their cross-examinations and closing arguments even when the only information about the case is a call from a concerned client. High-powered criminal trial lawyers spot the weaknesses in the opposition's case, can foresee how weaknesses will manifest, and knows just the time to exploit those weaknesses.