What is a dismissal without prejudice?

A dismissal without prejudice is not permanent and can be reversed later—only a dismissal with prejudice guarantees that the government cannot refile charges.

Dismissal of Criminal Charges with Prejudice

Depending on the country, a felony or misdemeanor criminal proceeding that ends prematurely due to error, mistake, or misconduct may end as being dismissed with or without prejudice. If the case ends without prejudice, the defendant may be retried. If the case ends with a dismissal with prejudice, it is over, and they cannot be re-charged.

Generally, a case is dismissed with prejudice if jeopardy is attached (the government can never refile it). When a trial begins, jeopardy attaches – in a jury trial, it attaches when the jury is empaneled, and in a bench trial, when the first witness is sworn. In the case of a jury trial, jeopardy attaches when the jury is empaneled, and dismissal (for prosecutorial misconduct or harmful error) at that point must be with prejudice. In the case of a bench trial (trial by the judge only), jeopardy attaches when the first witness in the case is sworn.

Dismissal After a Trial

If a criminal case is brought to trial and the defendant is acquitted, jeopardy is attached to the case and cannot be retried (this is known as double jeopardy). If the defendant was convicted and his conviction is overturned, jeopardy is not attached.

If a person is brought to trial where they are charged with a particular crime and convicted of a lesser offense, the conviction for a lesser offense is an acquittal of any higher-level offense (for example, a conviction for second-degree murder is an acquittal of first-degree murder). If the conviction is later overturned, the maximum the defendant can be retried for is the crime to which they were convicted; any higher charge is acquitted and thus is with prejudice.

If a case is dismissed before trial, it is typically a dismissal without prejudice.

Dismissal of Criminal Charges without Prejudice

A dismissal without prejudice permits the re-indictment or retrial of a defendant on the same charge. Only nonconstitutional grounds that do not adversely affect the defendant’s rights, such as the crowding of court calendars, might be sufficient to warrant the dismissal of a criminal action without prejudice. When an aggressive Michigan Criminal Defense Attorney moves to dismiss a criminal charge, they will generally make a Motion to Dismiss with Prejudice.

How do criminal defense lawyers get charges dismissed?

Although there is no definitive answer explaining how criminal defense lawyers get charges dismissed with or without prejudice, there are some common approaches, including the following:

Challenging the Evidence
- Lack of Probable Cause: Lawyers often challenge the initial stop, search, or arrest by arguing that law enforcement lacked probable cause.
- Illegal Search and Seizure: If evidence was obtained through an unlawful search or seizure, a motion to suppress can be filed. This can potentially lead to dismissal if the prosecution’s case relies heavily on that evidence.
- Chain of Custody Issues: Questioning the handling and documentation of evidence to show that it may have been tampered with or improperly handled.
Procedural and Constitutional Violations
- Miranda Rights Violations: If a defendant’s Miranda rights were not read during the arrest, self-incriminating statements may be inadmissible.
- Right to a Speedy Trial: Delays in prosecution that violate the defendant’s right to a speedy trial can lead to dismissal.
- Improper Filing or Notification: Mistakes in how charges were filed, or failure to notify the defendant properly can be grounds for dismissal.
Lack of Sufficient Evidence
- Insufficient Evidence: The defense can argue that the prosecution does not have enough evidence to prove the defendant’s guilt beyond a reasonable doubt.
- Motion for a Directed Verdict: During a trial, the defense can request the judge to dismiss the case if the prosecution fails to present sufficient evidence.
Negotiating with Prosecutors
- Pre-Trial Diversion Programs: Negotiating entry into diversion programs, which, upon successful completion, can lead to charges being dismissed.
- Plea Bargains: While not technically a dismissal, negotiating lesser charges can sometimes result in the original charges being dropped.
Witness and Victim Issues
- Uncooperative or Unavailable Witnesses: If key witnesses or the alleged victim refuses to cooperate or cannot be located, the prosecution may have to drop the charges.
- Discrediting Witnesses: Demonstrating that witnesses are unreliable or have ulterior motives can significantly weaken the prosecution’s case.

Influential criminal defense lawyers utilize a variety of strategies to get charges dismissed. From challenging the validity of the evidence to negotiating with prosecutors and highlighting procedural errors, their expertise, and thorough approach can significantly impact the outcome of a case. If you are facing charges, it’s crucial to have a skilled attorney, such as the lawyers with LEWIS & DICKSTEIN, P.L.L.C., who know how to fight for the dismissal of your case with or without prejudice.

Michigan Criminal Defense Attorney

Criminal cases have specialized rules, laws, statutes, and regulations. If you are charged with a crime or being investigated for a crime, it is essential that you have a criminal law specialist represent you and protect you against the government. Motion to Dismiss the charges against you may be appropriate in your state or federal criminal case. A top criminal lawyer would be able to provide a free consultation for you and discuss the potential of a motion for dismissal with or without prejudice in your case. At the law firm of LEWIS & DICKSTEIN, P.L.L.C., our attorneys have decades of legal experience in criminal defense. Call us or click this link for a free consultation. We will find a way to help you!

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.