Can I get my case thrown out for lack of evidence?

Question

Charges are filed against me, yet the witness has recanted her statements, leaving no evidence.  How do I go about getting the case dismissed or thrown out?  What steps do I need to take?

Eric Rothstein · Answer

Discuss this with your lawyer.

Anthony Lowenstein · Answer

Depends on the extrinsic evidence available. For more information, please see my website or call me for a legal consultation.

Theodore W. Robinson · Answer

Hire a decent lawyer and fight it following his/her advice on how to dismiss  it. However, remember the DA may also have other evidence. Also, the original  statement given by the witness is still out there waiting for you and they can  Subpoena the witness to testify against you and they will often do so - even  when that witness no longer wants to testify. In other words, they can force  the witness to testify under penalty of going to jail for no longer being  willing to go forward and say what they originally swore to. Speak to the  lawyer right away.

Eric M. Mark · Answer

You need a lawyer. Recanted statements do not automatically end cases. The state may still be able to use the original statement.

Andrew Subin · Answer

You may have to wait until the day the case is called for trial to see whether the witness will show up.  You should definitely have a lawyer to help you with this.

Andrew Roberts · Answer

You still need an attorney to deal with the DA. They still might have enough evidence to proceed and not believe witness.

Seth Bloom · Answer

Your attorney should file either a motion to quash or dismiss the case.  If you are seeking legal representation in this matter in Louisiana, we invite you to contact our firm at the information on this page for a free case evaluation.

Jacob P. Sartz · Answer

I would recommend consulting with either your attorney if you already have one,  or a local criminal defense attorney in your particular area who has experience  with these types of cases for specific legal advice. Effective council may have  a significant impact in the outcome of your case. Most attorneys provide free  initial consultations.  If you cannot afford to retain an attorney, you may be  eligible to have  the court appoint an attorney to represent you at public  expense.  However, availability of court-appointed council depends on  your  court or state's particular procedures and policies. You are  presumed innocent  until proven guilty. This answer does not contain  specific legal advice.   Generally, a person charged with a criminal offense may be able to file a motion  to suppress evidence seized, challenge their arrest, or even ask that the court  dismiss their case based on the legal issues, by  bringing a timely filed,  thoroughly researched motion and presenting  their motion at a hearing before  the presiding judge. The prosecutor, of  course, has an opportunity to file an  answer and will generally  challenge the validity of these motions.  Occasionally, these motions may  involve witness testimony as well. However,  whether to file a motion  depends on a person's particular, unique  circumstances. Motions are a  matter of trial strategy. An experienced criminal  defense attorney  generally does a thorough and careful review of the applicable  case law, statutory law, and the presentable facts before filing. If a motion   is not filed correctly or is without legal merit, a person could damage their  case. Many prosecutors have years of experience advocating against these types  of motions and deal with them on a regular basis.   If  you need specific legal advice, I would recommend retaining an attorney  or  requesting that the court appoint you an attorney at the public's  expense.

Jonathan Willett · Answer

Hello-  In a "domestic violence" case, the prosecutors are used to "recanting witnesses."  The government tries to compel the witness's attendance by the issuance of subpoenas, which are technically enforceable by "contempt of court."  However, if the witness' recantation is convincing, this can be conveyed to the prosecution, who then has discretion to dismiss the case.  Frequently, if witnesses do not show up for a trial and they are not subpoenaed, the court will dismiss the case.  Defendants have to be careful with this process so they do not get charged with improper influence or violation of a restraining order.  If the case is not domestic violence and the witness recants, then the DA will more likely dismiss.  In a serious felony case (class three or higher), this issue may be ferreted out in a preliminary hearing.  Hope this answers your question.  If not, give me more information.

Terry Nelson · Answer

CAN the case end up being reduced or dropped?  Of course.  Is that likely, just because you want it?  No. The police and DA don't spend time and money arresting, charging and prosecuting cases only to drop. That's not how the system works.  If there are valid defenses, facts, evidence, witnesses, sympathies, etc. that would allow an attorney to defend the charges and keep the prosecutor from proving the case as alleged, then, yes, the case could be won. Won through motions, won at trial, or won by negotiated plea, reduction or dismissal. You won't know until you consult with counsel with ALL the facts. If serious about hiring counsel to help you in this, and if this is in SoCal courts, feel free to contact me to arrange a consultation to discuss the facts and fees.

Philip Hache · Answer

If there is no evidence at all, the a prosecutor would not be able to prove their case.  You should contact an attorney to negotiate your case and work on getting it dismissed.

Thomas Ogas · Answer

Cases don't get dismissed easily.  A felony case can get dismissed by the judge during preliminary hearing, otherwise the only way to get a case dismissed is to force the DA to do it  generally this is done by winning a critical evidence motion, or its done by the DA at the last minute when they realize they cannot go to trial without a witness.  What can you do?  Very little.  You can force the case to trial and see if the DA will cut it loose when they realize they cant prove their case.

Michael J. Breczinski · Answer

The witness has recanted her statement where? In court under oath? If not and it was out of court you would need witnesses that could testify that she recanted. You need an attorney. Also I do not know all the evidence that they have against you. Can they make their case without her testimony. More fact are needed to properly answer this question. You need an attorney.

Thomas Tomko · Answer

The best advice is to hire an attorney to represent you.  Your case may not be thrown out based on what you say.  The witness could still be put on the stand and impeached by their recanting.  Also, if the first statements were made under oath, or if the witness has a reason to lie, or if the witness was intimidated, there may be a situation where the case would not be dismissed.  Your situation requires handling by someone with enough experience to work toward a dismissal.  That's where hiring an attorney would be of great value.  I hope that this was helpful.

Kevin O'Grady · Answer

Hiring a defense attorney can vastly improve your chances of having evidence blocked from trial or properly objected to at trial.  A defense attorney can file pretrial motions or take appropriate action at the trial in an effort to stop the government from using some form of the evidence you seek to have excluded from the trial.

Jeff Yeh · Answer

Hire a lawyer. Prosecutors will rarely dismiss a pro per case just because a witness has recanted.

Craig Elhart · Answer

You may not be able to get the case dismissed short of a trial.  It would be up to the prosecuting attorney as to whether he/she wanted to proceed in light of the recanted witnesses.  Your lawyer should be able to discuss this with the prosecutor.  If there truly is no evidence, you should be able to obtain a not guilty verdict if the matter proceeds to trial.

Cynthia Henley · Answer

You need to have a lawyer representing you. You personally cannot get the case thrown out, and a lawyer may or may not be able to. Depending on the type of case and the other evidence, the State may still have sufficient evidence for prosecution. For example, in Texas, a complainant in an assault case may recant but if they made outcry while under the pain of the event, those statements could be admissible as substantive evidence.

Jared Austin · Answer

Is this a misdemeanor or a felony? Was there a preliminary examination or has testimony already been given on the record? If the witnesses have given testimony on the record and are now telling a different story, the prosecutor can threaten them with perjury charges if the case goes to trial. If there has been no testimony on the record and the witnesses are now changing their story, you should get them to sign an affidavit to this effect and give this to the prosecutor. This may convince them that their case is weak or unwinnable now and may drop the charges. Otherwise, you would just have to go to trial and hope the jury acquits you because if the witnesses tell a different story, then the prosecution cannot meet their burden of proof. I strongly urge you to seek an experienced criminal attorney to discuss your case in more detail. He will be able to give you the best advise on how to proceed.

Michael Palumbo · Answer

You need to hire defense counsel to demand the appropriate hearings and make the proper motions and applications to dismiss. We can do this for you if you retain our office.

Carl Spector · Answer

In order to protect your legal rights you should seek out a qualified criminal defense attorney.

Joseph Dane · Answer

This isn't a do-it-yourself project.  You're facing criminal charges and a recantation by a witness won't necessarily mean they're left with "no evidence."  A prior statement may be admissible and all the proof the prosecution needs.    If you don't already have one, get a criminal defense attorney.

Howard Collins · Answer

Assume Oregon law applies:  The question you raise is good, but the solution is way too complex to answer in an email.  You need an attorney.  Recantation is not a guarantee of success, it just creates an issue of credibility, but the DA may decide it is still worth continuing.   Call for more input and let my office know you are a LawQA caller.  Thanks.

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Can I get my case thrown out for lack of evidence?

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