What to Consider When A Lawyer Claims to be able to get Your Criminal Case Dismissed in an Initial Consultation
By Don Murray
Over and over again, people who contact me to consult about a criminal charge remark that many of the other people they talk to point blank promise to get their cases dismissed. The reality is, however, that criminal cases are just not often dismissed, at least in the way you might imagine. Given that I am forced to address these bold and usually ludicrous claims in countless conversations, I decided to prepare some guidelines for people who are consulting criminal lawyers in New York City when those lawyers claim to be able to "get the case dismissed."
So if you are about to have a consultation with a criminal lawyer about your criminal charges or the charges against your child, read on, and absorb the information that follows. You will be prepared to ask the uncomfortable questions of this "dismissal lawyer", and you will have the background to think twice about engaging a lawyer who promises quick and easy dismissal of your case.
Believe it or not, "Dismissal" is A TERM full of wiggle room - So don't be satisfied with just a statement that the case will be "dismissed"
As someone charged with a crime or someone who cares about someone charged with a crime, I know you want to believe that the best possible result (a dismissal) is possible in your case. I get it. And the "dismissal lawyers" know this is what you want to hear. They know that you are therefore unlikely to be terribly interested in probing whether or not there is some legal wiggle room for a lawyer to retreat to after claiming to be able to get a "dismissal".
But the truth is that you need to be particularly vigilant when someone claims to be able to get your case "dismissed" because dismissal may not mean what YOU think it means.
You may think it means that the prosecutor gets up in open court and says "Case dismissed" or that the Judge bangs a gavel and says, "I am going to dismiss this case."
But is that really what you are being promised? Probably not. The reason it probably isn't what you are really being promised, is that the Government is rarely in the business of just dismissing cases, "just cuz". And Judges just point blank can't "dismiss" cases without some sort of a legal reason.
Many people unfamiliar with the criminal justice system don't realize that there are two general types of dismissals in a criminal case, dismissals based in the law, and dismissals based on the facts.
Factual Dismissal 1 - Not Guilty at Trial
The simplest dismissal is the dismissal based on the facts. The classic way to get a matter dismissed based on the facts is to go to trial and win. Getting acquitted (found not guilty) by a jury means that the jury has evaluated the facts, compared those facts to the law given to them by the judge, and decided that the facts do not support the idea that you are guilty to a high enough burden of proof.
So if you win a trial, your case is dismissed. This is a true dismissal without question, and perhaps the classic way your case could be dismissed. This dismissal is grounded in the facts. Maybe the jury didn't believe the primary witness. Maybe the jury didn't think the Government presented enough evidence to be sure enough. But whatever else can be said, the result is driven by the facts of what happened, as those facts are decided at the formal presentation of the case at a trial.
Now trial is a big, big deal. It takes six months to a year or more to get a case to the point of trial in New York City. So if the lawyer you are talking to is saying that he is going to get your case dismissed, is he or she suggesting that he or she is going to win the trial? Are you hoping to have a trial in your case? Are you expecting to come back and forth to court for the next year or so and then endure a grueling emotional trial? Is that what this lawyer is talking to you about?
Factual Dismissal Option Two - Your Lawyer is able to Convince the Government of the Error of its Ways and the Government Gives Up
Another way to get a true outright factual dismissal is to convince the Government (the District Attorney, that is, NOT the Judge), that they made a big mistake arresting you and that you really are innocent of the charges. (As an aside, you should realize that the Judge has very little to do with your case except to rule on legal issues. The Judge is not in the business of dismissing cases. The key player in terms of whether the case will be brought or not is the Prosecutor, not the Judge.)
Convincing the Government to just give up on the case and dismiss it sounds great because it avoids the back and forth to court and the stress and risk of a trial.
But if the goal is to convince the prosecutors that you are innocent, be prepared to be frustrated, unless the level of proof that you have is nearly mathematical. If you think that the Government is just going to assume that someone who is lying about you is lying about you because the charges "don't make any sense" or if you think the Government will be frightened about taking a weak case to trial, you need to think again.
Most criminal cases will ultimately turn on evidence that must either be believed or not and there won't be a video tape or DNA or fingerprints or a magical neutral witness. The Government does not often get in the way of complaining witnesses who are cooperative and seem to believe what they are saying. The Government might be willing to plea bargain away cases it believes are weak or "iffy" but in all but a very small number cases they will take the position that they would rather lose the case at trial than outright dismiss it.
So if the "dismissal lawyer" is promising a dismissal and he isn't meaning that he is going to take you to a trial and win after back and forth to court for a year or so, then the question is this: Are you saying that if we present all our evidence to the prosecutor now that the prosecutor will be so overwhelmed that the prosecutor will throw up his hands and cry "Uncle"?
Understand too that there is a certain amount of a gamble in presenting your evidence to the prosecutor in hopes that he will cry "Uncle" and give up. If the prosecutor is not as overwhelmed with your evidence as you think he or she ought to be, and he or she declines to dismiss your case, then you have just given up one of the few advantages of your position as a defendant in a criminal case. You have given the Government a road map to your defense and the Government now knows more about your case than you likely know about its case. This is a considerable disadvantage, and one that could cost you dearly.
Therefore, before you agree to rush into the District Attorney's Office you need to be very very certain that your level of proof is so overwhelming that the risk of the case not being dismissed is very low. For example, I went to the District Attorney with my client and his witnesses once in a robbery case, but I was armed with time and date stamped video surveillance footage that clearly showed my client leaving a movie theatre 20 miles away from where the robbery occurred at the time the robbery occurred. That's confidence. And it worked. The Government DID dismiss that case, and it was a fact based dismissal.
So is that why the lawyer is going to get the Government to just forget about your case? You have virtual mathematical proof of your innocence? If not, then where does this confidence in dismissal come from? If it is supposed to come from the notion that the complaining witness is a bad person or "obviously lying" then you better rethink your strategy. The Government tries cases every day with less than stellar witnesses.
Legal Dismissals 1 - Speedy Trial
If the "dismissal lawyer" isn't promising you a "factual dismissal" because he can't predict the outcome of a trial or because he can't predict how the Government is going to react to a presentation of your evidence, then perhaps the dismissal lawyer is promising you a "legal dismissal".
A criminal case can be dismissed for legal reasons, if legal reasons for dismissal exist. A legal reason means that the reason for the dismissal has NOTHING to do with the facts or your actual guilt or innocence.
The classic example of a legal dismissal is a dismissal that occurs because of a "speedy trial" violation. While "speedy trial" is a super complicated area of criminal law with statutory and Constitutional foundations, a rough idea of it is that in a criminal case, the Government can only take "so long" before bringing your case to trial. If the Government takes longer than "so long" the Government can say "so long" to the case because the Judge will dismiss it.
Here is where a Judge can dismiss a case. Judges can't dismiss a case because they think you might be innocent. That would be for a factual reason and Judges are not there to rule on what the facts are in a criminal case. But if THE LAW is violated, that is when a Judge may act. So if the Government takes too long to bring your case to trial, your lawyer can make a motion to the judge to dismiss the case for violating the "speedy trial" law.
This would probably be the most common reason a criminal case would be dismissed for legal reasons. The Government might become vulnerable to a "speedy trial" dismissal, for a variety of different reasons, which can all add up against it. One reason the Government may lose a case to speedy trial is if a critical witness remains uncooperative or unavailable for a long period of time.
But one thing about this legal dismissal should be immediately clear. It is impossible to predict with great certainty. Who knows what the future holds for witnesses? Even witnesses who today appear to be uncooperative, can be convinced by the Government to become cooperative later. Witnesses who are in the wind today, could be found tomorrow.
Therefore, it is ludicrous for a lawyer, in an initial consultation, to claim any sort of real certainty about getting a case dismissed for speedy trial violations.
Legal Dismissal Option 2 - Technical Problems with Complaint or Indictment
A misdemeanor charge will be brought on a Criminal Court complaint, a document that is prepared by the Government that lists the charges against you. There are certain minimal requirements that this legal document must meet. If those requirements are not met, the complaint (and therefore the case) is subject to a motion to dismiss.
The truth about this option is that in most situations, the dismissal obtained is temporary because in most cases, the Government is allowed to rewrite and refile the complaint. This has the added bonus of requiring the client to be rearrested and put through the arrest to arraignment system all over again, however. Therefore, the thrill of getting a case dismissed can yield to the horror of having to endure arrest to arraignment process all over again - and to essentially being right back where you left off in the case.
So if a "dismissal lawyer" is claiming that he or she will get your case dismissed, is it because he or she is aware of some glaring legal defect in the Criminal Court Complaint? If so, will you end up simply having to be rearrested on a properly prepared complaint later? If the dismissal lawyer has not seen the criminal court complaint yet, then how would this lawyer even be able to predict getting the complaint dismissed for legal reasons?
Dismissal Wiggle Room 1 - The ACD
Lawyers have earned their reputations for being slippery and the "dismissal lawyers" have done their part. Who would have thought that saying "I will get your case dismissed" could be something with varying interpretations?
One classic form of wiggle room is the settlement procedure called Adjournment in Contemplation of Dismissal or ACD in New York. Essentially, an ACD is a delayed dismissal by agreement with the Government and approval by the Judge. ACD's are a wonderful result to be sure, but they are different from an outright unconditional dismissal, although at the end, an ACD does result in a dismissal.
But...the Government will typically require a little something of the accused in exchange for its willingness to allow the ACD. Maybe it will be some community service, maybe it will be paying restitution in an assault case or criminal mischief case, or maybe it will be participation in a class or two. It could even include agreement to have an Order of Protection (limited or full) imposed. So it isn't exactly the same as a dismissal as most people would understand that term. In fact, for people who must meet FINRA background checks, an ACD in some circumstances can be treated as a plea of guilty to a crime.
So when the "dismissal lawyer" is telling you he or she will get your case dismissed, is he or she really saying that you will get an ACD? And if so, will there be conditions? Will there be an Order of Protection? And if you challenge the "dismissal lawyer" about his previous promise, he or she will simply fall back into the wiggle room and say, "Well at the end of the ACD period, it IS getting dismissed."
Right. But is that what the lawyer said during the initial consultation?
Wiggle Room Dismissal 2 - A Violation Level Plea Bargain
The second possible wiggle room settlement option for a criminal case is, believe it or not, a common sort of a plea bargain. Yes, leave it to us lawyers to work out a plea bargain and still claim to have gotten your case dismissed or still add your case to the long list of our "thousands of dismissals".
Here is how it works. So, your "dismissal lawyer" works out a settlement where you are expected to plead guilty to a non-criminal offense called "disorderly conduct" and say, a small fine, to settle your case. You go on your way with the equivalent of a parking ticket and all is well. This is an extremely common resolution of many cases in New York City Criminal Court and a perfectly wonderful result in many cases. Nothing wrong there. And it could very well be a great way to end your case if you are interested in a settlement.
But as you leave the courthouse with your "dismissal lawyer," you remember the conversation in your initial consultation where he or she told you that your case would be dismissed. This was one of the reasons that you hired this lawyer and you assumed at the time that he meant that your case would actually be dismissed. And here you are walking out of the courthouse having just paid a fine after pleading guilty to disorderly conduct. While you are happy that the case is over, you ask the dismissal lawyer, "But wait. You were so confident in our initial consultation that you were going to get my case dismissed. What happened?"
The answer here is a fantastic lawyer answer that might get an A in a law school exam, and it might allow someone to pretend that he or she didn't mislead a potential client.
The answer is that your case DID get dismissed. You see, the misdemeanor charge (say assault, petit larceny, criminal mischief, drug possession, etc.) WAS dismissed as part of the plea bargain. It was replaced for purposes of settlement with that Disorderly Conduct (NON criminal) charge that you pleaded guilty to. So YES, it is exactly true that your Criminal Charge was dismissed.
Just like he said...
But it wasn't exactly explained like that to you, was it?
So when you see advertisements from criminal lawyers crowing about the hundreds or thousands of cases they have gotten dismissed over the years, know that there is plenty of wiggle room there to count ACD'd cases or even cases where they have had their clients plead guilty to something. Don't imagine for a moment that thousands or even hundreds of times, they have simply convinced the Government just to give up absent mathematical level proof like a video or DNA evidence.
The difference between the "dismissal lawyers" and Shalley and Murray is that we will not simply reflexively claim to be able to get your case dismissed because we sense that is what you want to hear. We will evaluate your case thoroughly and honestly without the need for preposterous bravado.
Call or text us at 718-268-2171 for your free consultation.
Don Murray, pictured above, is one of the founding partners of Shalley and Murray and has been a criminal defense lawyer in New York City for more than 27 years. He can help you too.