One of the biggest misconceptions people have about criminal cases is that it’s unbeatable. But only 5-10% of cases actually go to trial, with about 90% of cases being dismissed well before they see a courthouse. For an overwhelming 90% of criminal complaints, the charges are often dropped due to a large number of factors, lack of evidence notwithstanding.
More often than not, trial lawyers will see early on the signs that a criminal case is weak, from inconsistencies in witness testimonies to improper arrest procedures. Pre-trial investigations not only determine how long a trial lasts, but also if a case will go to court at all.
It’s during this crucial period that trial lawyers will determine if a criminal case is weak, if it has enough evidence and witnesses to carry it to court, and if their clients would be better off with a trial.
Here are some of the signs that a criminal case is weak:
Signs a Criminal Case is Weak: There was No Probable Cause to Arrest
For an arrest to be legal, law enforcement must provide probable cause that the person they’re arresting is guilty of committing a crime. Police officers can’t just pick up any random person off the street just because they’re gut told them to (“gut feelings” don’t stand up in court).
During an arrest, a law enforcement officer must base their arrest on a reasonable belief, derived from objective observation of facts and circumstances available to them, that the person they’re arresting has committed, or is committing, a crime.
For example, if an eyewitness tells a police officer that they saw a mugging down the street and that the suspect was wearing a blue shirt with a red beanie carrying a machete, and a police officer spots a person matching the eyewitness’s description with the same weapon, and the officer decides to arrest that person, they have probable cause to arrest.
However, if a police officer arrests a person who was near the scene of the crime for no reason other than their proximity (willfully ignoring witness descriptions or CCTV footage), then the arrest can be proven to have been made without probable cause, which will lead the charges to be dismissed during pre-trial agreements. Any lawyer paid by the hour can get the arrest thrown out.
Probable cause protects the innocent from wrongful arrests, ensuring that people remain innocent until proven guilty.
Relative to a wrongful arrest, illegal searches are also grounds for dismissal. It’s sometimes how you can get charges dropped for a court date. Police must have probable cause before they open a glove compartment in a car during a routine traffic stop or open drawers in a suspect’s house. A search may only be conducted if the police have a search warrant.
Probable cause may include exigent circumstances (e.g., gunshot was heard from the outside, a suspect ran into the building, evidence may be destroyed).
Signs a Criminal Case is Weak: A Mistake was Made in Criminal Complaint
When law enforcement officers arrest a person, they have to write a criminal complaint or any other type of charging document. In this document, the arresting officer logs down details about the suspect, as well as the crime they may have committed. This is signed by the officer under oath, which means that they’re swearing to the absolute truthfulness of what they’re writing down.
Each state differs in terms of what information is written down on a charging document, and it must be adhered to strictly, otherwise, the document can be nulled and voided, even if it was a minute error or a typo.
Of course, errors or omissions can be corrected, but only by the arresting officer who wrote up the charging document in the first place. Given the amount of time it takes for cases to go to trial, a small mistake may go unnoticed until the very last minute; in some cases, the arresting officer who was in charge of the document had already retired or left the force. So the document may no longer be edited, making the criminal complaint null and void, which also means that the prosecution will be forced to dismiss the complaint.
Signs a Criminal Case is Weak: The Prosecution Has
When a defendant is arrested and criminal charges are levelled against them, the prosecuting attorney must present the case to the court. During this presentation, they must also show that they have enough evidence to prove, or at the very least establish probable cause, that the defendant is guilty.
Just like during an arrest, the prosecution must provide evidence that shows probable cause, which means that they can show that the evidence is objective and factual enough to prove that the defendant committed a crime. A grand jury will decide whether or not the evidence passes muster; if it does, the case goes to trial.
However, if a grand jury decides that the evidence is insufficient to establish probable cause, then the charges will be dropped and the case dismissed. This happens when prosecutors have severely limited evidence against the defendant.
Often, prosecutors won’t even bring the case in front of a grand jury if they feel the evidence they have isn’t enough.
Signs a Criminal Case is Weak: Unavailable Witness or Lost Evidence
Trials rely on two very important factors to determine a defendant’s innocence: witness testimonies and physical evidence. If key witnesses or key pieces of evidence suddenly become unavailable or missing, then the prosecution may have no choice but to dismiss the case, especially if that testimony or evidence is crucial in establishing guilt beyond reasonable doubt.
Cases have been won (and lost) on the sole basis of physical evidence, so it’s impossible to understate how important those can be, given that it’s one of the three types of proof needed by the court. For trial lawyers, it’s important that the evidence they have on hand not only carries weight, but also followed proper handling and procedure so as not to taint their objectivity and validity.
Lawyers also need to ensure that their witnesses are sure about their testimonies and that they’re not afraid to give it in the first place. Some witnesses may even refuse to testify on the basis of the Fifth Amendment (some testimonies may hurt the witnesses themselves, especially if they were accomplices to the alleged crime of the defendant). Witnesses may also simply disappear, or even die.
In any of these cases, the prosecutor may have no choice but to drop the case due to insufficient evidence.
Wild Card: Prosecutor’s Discretion Due to Extenuating Circumstances
But not all criminal cases are dismissed because they’re weak: sometimes, trial lawyers may drop a case due to extenuating circumstances, which may affect whether justice is truly served in the end.
An example would be a lawyer dismissing a minor criminal charge (like trespassing or loitering) because the defendant doesn’t have any prior criminal record; prosecuting them may not be the best course of action.
Prosecutors can also choose to dismiss a case “without prejudice.”
When a lawyer finds themselves lacking key witnesses or evidence, they may choose to dismiss a case without prejudice, which allows them to refile the case at a later date. They may wait until they have what they need to prove guilt beyond reasonable doubt. This is often employed by prosecutors handling misdemeanors against teenagers, so as not to damage the lives of the youth.
In cases like that, lawyers will often ask the court to grant certain conditions to the defendant, like not being charged for a new crime within a certain period. Otherwise, the prosecution will re-file the original charge. Such conditions are similar to what convicted felons must follow while they are on probation. Probation violations may land the convict back in jail and additional charges may be filed, depending on the severity of the violation.
A criminal case is not going to get dismissed when a victim is unwilling to file charges or changes their mind about pressing charges. In the United States, it’s the government that presses charges for the victims, and it’s up to the prosecuting lawyer to follow through. There have been cases, albeit rare, where a victim will want to drop the charges because of stress or psychological distress. In this case, it’s up to the prosecuting lawyer to drop the charges after weighing whether true justice would be served by pushing forward.