Why do Prosecutors Sometimes Drop or Dismiss Criminal Charges?
The impact of a criminal conviction can be significant; therefore, a criminal case being “dropped” (dismissed) can be a massive weight off a person’s shoulders. Avoiding a criminal conviction also enables them to expunge the charge—protecting their reputation. This article will examine some of the reasons why a case could be dismissed and what role attorneys have in this process:
I. The Commonwealth cannot maintain the charge
Like all attorneys, prosecutors ask themselves whether they have a winnable case. However, prosecutors have an even higher standard—they cannot maintain a charge which is unsupported by probable cause. See Virginia Rules of Professional Conduct 3:8(a). In criminal cases, the prosecution must prove each element of an offense beyond a reasonable doubt. However, even where a case is “winnable,” sometimes other factors—i.e. uncooperative/unavailable witnesses or evidentiary issues—may make a prosecutor reluctant to pursue a case. This is why obtaining and reviewing evidence in advance is so important—it allows attorneys to see the strengths and weaknesses of the Commonwealth’s case and what witnesses they will need. If issues like the above occur, the Commonwealth may make a motion to nolle prosequi (voluntarily dismiss) the charge. See Virginia Code § 19.2-265.3.
II. Prosecutorial Discretion
Even where a prosecutor has the necessary evidence to move forward, they may still exercise their discretion and determine that a motion for nolle prosequi is appropriate. The reasons why a prosecutor may move to nolle prosequi the charge are legion and depend upon the facts and circumstances of each case. Importantly, if the Commonwealth makes a motion for nolle prosequi, while the charge is dismissed, it may be “brought back” so long as the statute of limitations does not prevent the prosecution.
III. Deferred Disposition
Depending on the facts and circumstances of the case, the Commonwealth may agree to a deferred disposition in exchange for a plea to the charge or a lesser offense. See 19.2-298.02. In a deferred disposition, a Court will find that there are sufficient facts to find that person guilty, yet it will continue the case for a final disposition to allow the Defendant to complete agreed upon or court-imposed terms such as uniform good behavior, community service, payment of court costs, and/or mental health treatment. The terms of a deferred disposition vary with the facts and circumstances of the case; however, upon the expiration of some period, the government may agree to dismiss the case and make the person eligible for expungement. Id. While a person receiving a deferred disposition under this section waives their right to appeal if they fail, deferred dispositions are otherwise excellent ways to avoid a criminal conviction.
IV. Accord and Satisfaction
Some cases may also be resolved via an Accord and Satisfaction. See Virginia Code 19.2-151. A defendant and victim may come to an agreement where the victim in a criminal case states that they are satisfied by the agreement (often this is accomplished through the payment of any medical bills and other costs and may include an amount of compensation for the victim’s injury). If this occurs, and the victim acknowledges it in writing and submits it to a court, the court may dismiss the prosecution upon the payment of costs. Importantly, while the code lists that this applies to assault and battery or other misdemeanors, the misdemeanor does not have to be of the same kind as assault and battery Glidewell v. Murray-Lacy & Co., 124 Va. 563, 98 S.E. 665, 1919 Va. LEXIS 148 (1919). The Accord and Satisfaction statute was instead designed to apply to misdemeanors involving civil wrongs. Darnell v. Davis, 190 Va. 701, 58 S.E.2d 68, 1950 Va. LEXIS 161 (1950). Further, the code does not mention a specific role for prosecutors with respect to an accord and satisfaction, even though it does not prohibit the Court from asking a prosecutor for their opinion.
V. Mitigation
Finally, criminal defendants can help themselves by completing “mitigation.” Where a prosecutor is otherwise ready and able to proceed on a case, significant mitigation may sway them to exercise their discretion. Even if mitigation does not sway a prosecutor that they should outright drop the charge, it may lead to a reduction in the classification of the offense or the penalty sought.
Many things may be mitigating, and what different attorneys recommend depends upon their own experience, but having a clean criminal or traffic record often is relevant to a prosecutor’s consideration of how they will proceed with the case. Further, defendants who complete community service before a court date can demonstrate their commitment to doing good work and supporting their community. Ultimately, what may be mitigating in one case may not be all that helpful in another, which is why the assistance of an attorney familiar with the jurisdiction can help guide you to complete the most effective mitigation to achieve a good result.
The outcome of each case depends upon many factors; therefore, hiring an attorney in advance of your court date can allow the best opportunity to achieve the best possible outcome.
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