Signs That a Criminal Case is Weak & Could Be Dismissed at Trial

A question that many clients face is whether or not to take their case to trial. That is a difficult question that requires careful analysis and consideration by the client with significant input from their attorney.

Signs that a Criminal Case is Weak

For a host of reasons, most criminal cases do not end up in trial. For example, a client may not proceed to trial because:

• Prosecutors dismiss the charges due to lack of evidence
• Prosecutors don’t refile charges after the defendant’s motion to dismiss the indictment is granted
• Plea bargains
• Motions to suppress evidence are granted and the case is dismissed
• Witnesses become unavailable
• Evidence is lost or destroyed

A client’s attorney also plays a significant role in whether or not the client elects to proceed to trial. If the client is appointed a public defender, they are not given the opportunity to select the attorney who represents them. Rather, the Office of the Public Defender selects and appoints an attorney for them. At times, this can lead to a lack of confidence by the client of their attorney. This lack of confidence can be exacerbated by the court-appointed attorney having to juggle too many clients and cases. There is also the possibility that you may not meet your public defender until the day of your first court appearance. 

Another consideration is the client’s ability to find and afford an experienced private practice trial attorney. The trial and sentencing process is labor-intensive, high stress, and high stakes. The cost of an experienced trial attorney can be a significant and deciding factor. True trial attorneys who have experience trying cases are not common. For example, less than 2% of all of the attorneys in New Jersey are certified by the Supreme Court of New Jersey as a Criminal Trial Attorney. To become certified, attorneys are required to have tried a number of criminal jury trials to verdict and have substantial involvement in the preparation of litigated matters. One reason there are so few certified attorneys is because of a lack of trial experience. 

A significant benefit of having a private attorney is the time and resources the attorney and paralegals will have to devote to a client’s case. Private attorneys have a significantly smaller caseload than court-appointed attorneys and therefore have more time to review and analyze a case. This review and analysis in the pre-trial phase of a client’s case is a benefit for the client. A trial attorney will look into the prosecutor’s case during pre-trial investigations to look for inconsistencies in witness testimony, improper arrest procedures, or willful withholding of evidence and recommend to their client if they should go to trial. This insight and analysis are critical when a client is deciding whether to go to trial.

In this video, Rosenberg | Perry & Associates partner Robert M. Perry discusses deciding whether or not to go trial.

When considering whether or not to go to trial a client must know the strength of the State or Government’s case against you. Below are some signs that your criminal case is weak. 

Insufficient Evidence

When you are arrested and criminal charges are brought against you the prosecuting attorney must present their case to the Grandy Jury for Indictment. The State must establish that there is probable cause to believe that a crime was committed and the defendant was involved. The evidence must be objective and factual in order to prove there was probable cause and that the defendant did commit the crime(s) they are charged with. A grand jury will evaluate the evidence provided, such as police reports, witness testimony, medical records, or other evidence meant to prove probable cause, and decide whether or not the evidence is sufficient enough to formally return an indictment against the defendant.

If the grand jury decides there is not enough evidence to establish probable cause then the matter is “no billed” and all charges are considered dismissed. This is another way of saying that the charges were dismissed due to a lack of sufficient evidence.

Even if a grand jury finds probable cause and an indictment is returned, a trial attorney can file a motion to dismiss the indictment. This is an application filed with the court challenging the grand jury proceedings.

Evidence Was Obtained Illegally

Evidence that is discovered or seized during a criminal investigation can not always be used for the prosecution of criminal charges. The evidence must be lawfully discovered, seized, and offered into evidence. Evidence that is seized in violation of the law cannot be used against a defendant in the prosecution of their criminal case. 

Every defendant is entitled to the rights and protections set forth in the United States Constitution. One of those protections, set forth in the Fourth Amendment, is the right to be free of warrantless searches and seizures. This requires law enforcement to obtain a warrant or have a recognized exception to the warrant requirement before one’s person or property may be searched and have property seized. 

When a defendant’s rights are violated, the evidence seized can be barred from use in the prosecution of criminal charges. This evidence is sometimes called “Fruit from the poisonous tree”. Since the Court cannot “undo” the discovery of illegally obtained evidence, the remedy fashioned by the court is to suppress or bar the evidence from the use by the prosecutor in the criminal case. 

An experienced trial attorney will be able to identify an unlawful search and file a motion to suppress the illegally discovered evidence. If the motion is granted, the Judge will exclude the evidence and the prosecutor will not be permitted to present it to the jury. 

Lack of Probable Cause For the Arrest

No criminal charge or indictment can proceed without a finding of probable cause. For an arrest to be lawful, there must be enough evidence to provide reasonable grounds that a crime was committed. Without probable cause, a criminal complaint or indictment must be dismissed. 

When a defendant is indicted, that means that a majority of the members of the Grand Jury found that there is probable cause to believe that a defendant committed a crime or crimes. An experienced trial attorney will review and request the Grand Jury transcripts to review the presentation to the Grand Jury. If the presentation lacks probable cause, a motion to dismiss the indictment can be filed. If granted the case is dismissed, but the state has the ability to re-present the matter for a superseding indictment. 

Probable cause is based on the specific facts and circumstances of each case. Probable cause can be based on a law enforcement officer’s reasonable belief based on objective observation of facts and circumstances available to them that someone they are arresting has committed or is in the process of committing a crime. 

While probable cause is a relatively low standard, it is a critical component of our criminal justice system. This means that a defendant cannot be arrested based on a “gut feeling” or “hunch”. The probable cause standard attempts to protect innocent people from wrongful arrests.

Mistake(s) Made in the Criminal Complaint

When an arrest is made a law enforcement officer will draft a criminal complaint on a warrant or on a summons. The criminal complaint will set forth the basic allegations of a criminal charge and be supported by an affidavit of probable cause. The criminal complaint will include the date of the alleged offense, the conduct, and the criminal code violation. 

A criminal complaint issued by a law enforcement officer requires the officer to sign the complaint under oath, swearing to the truthfulness of the allegations included in the criminal complaint. What is written in the charging document is critical as it must provide the defendant with reasonable notice of what crime and potential consequences the defendant is facing. 

When a criminal complaint is improperly filed it can lead to the dismissal of the criminal charge. For example, when defendants are charged in a criminal complaint with the correct statute, but the wrong subsection, this provides a basis for the dismissal of a criminal charge. This is often a type of trial strategy, in that a trial attorney may not bring the incorrect charge to the attention of the prosecutor. Once a trial has commenced the complaint cannot be amended, which can lead to the dismissal of the criminal charge.

Unavailable Witnesses or Lost Evidence

In order to be convicted of a crime in New Jersey, the State (or the Government) must prove each and every element of the crime beyond a reasonable doubt. This means that the prosecutor must present evidence to the judge or jury that establishes a defendant’s guilt. Just because evidence is collected during a criminal investigation does not mean it will be available for trial. 

Evidence can be physical evidence, such as a gun or a knife. Evidence can also come in the form of testimony by a witness. If the prosecutor is unable to produce evidence at trial, the State may not be able to prove its case and be forced to dismiss the charges. 

Testimonial evidence can sometimes be difficult for the State to produce. Witnesses may not be willing to testify or may not be able to be located by the prosecutor. Sometimes witnesses move and it is too costly to transport them back for trial. If there are various witnesses across various states, the logistics of coordinating and transporting witnesses can make a case less desirable to prosecute. 

Witnesses may also pass away in advance of trial and be unavailable. The State is not permitted to use pre-recorded witness testimony in criminal cases. As such, when a witness is unavailable at trial, the State must proceed without that testimonial evidence. 

Witnesses can also refuse to testify based upon an invocation of their Fifth Amendment right to remain silent. This would mean that a witness would refuse to answer any questions when called to testify. A valid invocation of one’s right to remain silent cannot be overcome and would render the witness unavailable. Trial attorneys will work to ensure that critical witnesses are willing and available to testify. 

In addition to testimonial evidence, physical evidence also plays a critical role in the prosecution of a criminal charge. Evidence must be properly preserved, collected, logged, stored, and transported. The State must establish the proper “chain of custody” before it can offer anything tangible into evidence at trial. Trial attorneys work to ensure that the State has followed all of the necessary procedural chains of custody requirements before anything is entered into evidence at trial. If the State fails to establish a proper chain of custody the evidence is inadmissible at trial. 

Evidence that is lost or stolen is also inadmissible at trial. If a piece of evidence is collected, but then goes missing before trial, it can be deemed inadmissible. By way of example, if there is video surveillance that is seized but then lost or destroyed prior to trial, the State can be prohibited from even mentioning the existence of such evidence. This can apply to other seized evidence, such as a gun, knife, or drugs. 

Extenuating Circumstances

Even when the State has a relatively strong case a prosecutor always has the ability to exercise prosecutorial discretion and dismiss the case due to extenuating circumstances. The goal of the prosecution is not to simply obtain a conviction, but to seek justice. Certain facts and circumstances allow an experienced trial attorney to convince the prosecutor to exercise their prosecutorial discretion and dismiss a case. 

A case may be dismissed when the charges are minor, such as trespassing or loitering, and a defendant has no prior criminal history. Another factor is when the consequences of the crime are perceived to be too severe or would overly punish the defendant for the crime committed. 

Another significant factor in dismissing charges is the willingness of a complaining witness to testify. There are times when a witness is closely aligned with the defendant and does not want the defendant prosecuted. In some cases, their opinion is heavily considered by the prosecutor and the case can be dismissed outright or dismissed “without prejudice”. “Without prejudice” means the charges are dismissed but can be reinstated at a later date. Another potential outcome is that the case is placed on administrative hold for a period of time (e.g. 90 days). So long as no additional charges or incidents take place during that period of time, the case will be dismissed. 

In cases involving minor juvenile crimes, a prosecutor may elect to dismiss a charge without prejudice to avoid damaging the juvenile’s future. In those cases, the dismissal will usually have conditions such as the defendant not committing another crime in a certain time span, or if the condition is violated the prosecutor will re-file the original charges. 

Signs Your Case Will Be Dismissed

A case can be dismissed either by a judge who determines the case to be without merit or when a prosecutor decides not to pursue charges due to lacking evidence.

There are a number of indicators that indicate your case may be dismissed, which include:

• The prosecution has gathered weak or no witnesses
• The evidence is inadmissible
• Incorrect charges were filed, or
• The arrest was improper or even illegal.

How to Build a Case

While it may not always be easy to know if or when a civil or criminal case is being built against you, it is helpful to understand how these cases progress.

Steps in a Criminal Case

• Investigation
• Charge pressing
• Initial hearing before going to trial
• Discovery of the case
• Plea Bargaining
• Primary Hearing
• Pre-trial hearing & motions
• Trial
• Verdict

Hire a Trial Attorney to Help You With Your Case

Anyone who is charged with a crime or offense should consult with an experienced criminal trial attorney. You need to know all of your options and potential consequences so that you can make an informed decision on how to proceed. 

The lawyers at Rosenberg Perry & Associates are all experienced trial attorneys. Each client is assigned a legal team, which includes a lead attorney, secondary attorneys, and a dedicated paralegal. Each attorney brings their own views, experience, and perspective to the case, which helps to develop a successful defense strategy. In addition to the attorneys, our paralegals also review the case and work together with the attorneys to look for signs the prosecutor’s case is weak and work with you to decide if you should go to trial.

If you or someone you know is charged with a crime or offense, contact our office for a free consultation. We are here to help and guide you through whatever difficult circumstance you are facing. In doing so, we strive to honor our core values every time we speak with a client in need. Those core values are: 

• Team Wins
• Learn From Everything
• Empathy Compassion & Integrity, Always
• “We Can Do Better” Mentality
• Commitment to Excellence
• Communication is Key
• Relentless, Fearless, and Aggressive Advocacy.

Our intake team understands discretion and treats every potential client with dignity and respect. Our attorneys will be able to answer all of your questions and help ease your mind. We are available 24 hours a day at (609) 216-7400 or contact us online.