How Criminal Charges Get Dropped in State and Federal Cases

Here in Texas, once someone is formally accused of a crime (under state or federal law) they enter our criminal justice system.  There are only so many ways they will be able to exit.  Dropped charges?  It is true that criminal charges can be made against an individual and later dropped.  It happens a lot in the movies and on TV shows.

However, the reality from a criminal defense perspective is that getting a criminal charge dropped is highly case specific.  It’s complex.  Each person’s situation is different and has to be evaluated on its own circumstances.  Another complication:  how cases are dropped in Texas depends upon the jurisdiction, since these things are also county specific.

There are no standardized procedures or set rules for getting felony criminal charges dropped.  That being said, an experienced and aggressive criminal defense attorney may find a number of reasons for some, if not all, of the criminal charges facing a client to be dropped in either the state or federal system.

How Criminal Charges Begin

How does a charge arise?  As a general rule, things begin with a law enforcement agent, like a local police officer, interrogating the individual. In other situations, someone is arrested after a grand jury has issued its indictment or the prosecutor has filed an information.

For many, things begin with a traffic stop on a Texas roadway where the police officer begins asking questions.  Sometimes, it is part of a formal investigation, like interrogations that are part of an ongoing trafficking joint task force.

Your initial contact with a law enforcement agent turns from that first contact to a loss of your freedom as you are taken into custody and arrested for violations of either state or federal law.  During the arrest, you should be given your “Miranda warnings.”  Read, Arrested in Texas: Resisting Arrest, Evading Arrest, Detained Without Arrest.

Arrest vs. Charge

An arrest is not the same as a criminal charge.  When the police end someone’s freedom by taking them into custody, there is an “arrest.”  The officer can make the decision to arrest.  (The arrest may also occur after a judge has issued an arrest warrant pursuant to the grand jury indictment or prosecutor’s information. More on that, below.)

No police officer or arresting agent has the power to decide what the official criminal charges will be – or if charges will be filed.

It is up to the prosecutor, i.e., the ADA (Assistant District Attorney) in Texas courts or the AUSA (Assistant United States Attorney General) in the federal system, to decide (1) whether you will face criminal charges; and if so (2) what each of these criminal charges will be.  See, Frase, Richard S. “The decision to file federal criminal charges: A quantitative study of prosecutorial discretion.” The University of Chicago Law Review 47.2 (1980): 246-330.

Criminal charges are entirely within the power of the prosecution.  Long ago, the United States Supreme Court explained the process as follows:

“A criminal charge, strictly speaking, exists only when a formal written complaint has been made against the accused and a prosecution initiated. It is true the popular understanding of the term is “accusation,” and it is freely used with reference to all accusations, whether oral, in the newspapers, or otherwise; but in legal phraseology it is properly limited to such accusations as have taken shape in a prosecution. In the eyes of the law a person is charged with crime only when he is called upon in a legal proceeding to answer to such a charge. Mere investigation by prosecuting officers, or even the inquiry and consideration by examining magistrates of the propriety of initiating a prosecution, do not of themselves create a criminal charge. The hearing and deciding on a criminal charge is something which takes place only after the criminal charge has been legally made.”

United States v. Patterson, 150 U.S. 65, 68, 14 S. Ct. 20, 37 L. Ed. 999 (1893).

Bringing a Criminal Charge

There are two different ways that felony criminal charges are brought against someone.  They are:

1. Grand jury indictment; and
2. Filing of an information by the prosecutor.

The formal charge itself must have specific information, such as (1) details about the alleged criminal act (date, time, location); (2) factual circumstances of the crime; and (2) allegations of how the accused is said to have been involved in illegal acts.

Arraignment: Initial Appearance Before a Judge

After the charges are formalized by the prosecution, there will be an initial appearance or an arraignment before a judge where the criminal charges are read to the accused.  What the defendant faces in the form of penalties upon conviction are also detailed here.  The right to have legal counsel is explained as well as the appointment of an attorney for the indigent.  This is not the time for entering a plea; that happens at a later hearing.

At that later hearing, the prosecution’s work in drafting the criminal charge is explored.  The criminal defense attorney has the opportunity to challenge all the aspects of the case.  Has there really been a criminal act as defined by law?  If so, is there admissible evidence to support the position that there is probable cause to show the defendant committed the offenses brought against him or her?

For more, read our discussions in The Early Part Of A Texas Criminal Case In State Or Federal Court.

If the judge finds there is no probable cause to support the allegations, then the criminal charges are dismissed.  This allows the defendant to be released from custody and restored to freedom.

However, dismissal of criminal charges is not the same as having criminal charges dropped.

Dropping a Charge versus Dismissal

For many, dropping or dismissal makes no difference: either way is a key to the door exiting the system and returning them to freedom.  However, legally there is a difference.

For one thing, charges can be dismissed only after criminal charges have been filed in the public record.  Compare this to where a criminal charge can be dropped either before or after a charge has been officially filed in the record.

Charges can be dismissed by a grand jury (i.e., “No Bill”); a prosecutor; or a judge.  Charges can only be dropped by a prosecutor.

For more on grand juries, read: Grand Jury Proceedings in Texas: Indictment and Defense  and Grand Jury in Texas: Defending Witnesses and Targets of Grand Jury Investigations.

Dropped Charges Can Be Reinstated

Importantly, dropped charges may not have been ruled upon by any court, unlike charges that are dismissed by court order.  This means that the rules of double jeopardy do not apply to these cases where there are dropped criminal charges.

Criminal charges that are not “dismissed with prejudice” by the court, as well as charges that are dropped without prejudice, can be brought again against the accused.

Of course, anyone accused of a crime in either Texas state courts or the federal system gains quite a bit with dropped criminal charges, especially when the case is very young – but there is always a concern that the other shoe may drop.  It is important to recognize that a zealous prosecutor may have the legal right to file those same criminal charges against the accused in the future, as long as the statute of limitations has not run and there is new and valid evidence to support the new filing.  Dropping a charge does not necessarily bar the same charge being refiled as a matter of law.

Prosecutors and the Power to Drop a Criminal Charge

Prosecutors in both the state and federal system are lawyers entrusted with the duty of representing the government in criminal matters.  As licensed attorneys, they have the task of gathering all the facts of the case and applying the law to those facts in order to confirm the criminal laws that are alleged to have been violated by the accused.

Victims and Dropping Criminal Charges

Victims of crimes do file complaints.  However, they cannot decide the scope of the criminal charges or whether or not the matter should proceed within the system.  Victims may even request that criminal charges be dropped by the prosecutor, but that only becomes something for prosecutorial consideration.

Bases for Dropping a Criminal Charge

Experienced criminal defense attorneys, many of whom (like me) have had past experience as prosecutors, understand very well the various incentives that may result in a prosecutor dropping one or more criminal charges against an accused.  Among them are the following:

• Uncooperative victim. When a victim requests that criminal charges be dropped, for whatever reason, then they’ve weakened the state’s case substantially.  This may be enough to have one or more charges dropped.
• Defense demonstrates weaknesses in the state’s physical evidence. Savvy defense lawyers know a lot about many things, including fingerprint analysis, forensics, and crime scene investigations.   If there are problems with the physical evidence, then the prosecution may have to drop the corresponding charges.
• Defense can move for exclusion of all or part of the state’s case based on illegalities. If there has been an illegal search or seizure; an improper arrest warrant; the failure to give Miranda warnings; or other constitutional violations (g., 4^th, 5^th, or 6^th Amendment challenges), then the state’s case has been weakened and charges can be dropped.
• Defense provides new evidence that clears the accused with dropped charges. Perhaps an alibi can be provided.  Maybe the defense investigation reveals other facts that discredit the states’ case and exonerate the accused.
• Defense discredits the state’s witnesses. If the witness testimony supporting the state’s case is shown to be flawed or even false, then charges may be dropped.

Plea Bargaining and Dropping Criminal Charges

At several intervals during the progression of a criminal case through the system, there will be opportunities for the defense attorney and the prosecutor to enter into plea negotiations.  Charges may be dropped as a result of a plea agreement that may or may not result in the accused having to be sentenced and/or facing any amount of time behind bars.

These include:

1. Knowing the state’s case is weak, the prosecutor may be willing to drop the more serious criminal charges if the accused will agree to enter a guilty plea for lesser charges.
2. The accused may agree to participate in future relationships with law enforcement in exchange for dropped criminal charges. For more here, read our earlier discussion in Less Time for Federal Drug Crimes: When Safety Valve Defense Circumvents Mandatory Minimum Sentences Under Federal Law.
3. Sometimes, the defense and the prosecution can agree upon the accused entering into a pretrial diversion program with criminal charges being dropped. Read, Diversion Programs in Texas.

For more on plea bargaining, read Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview.

What About Affidavits of No Prosecution?

Many clients may have heard about “affidavits of no prosecution.”  They are well-known here in Texas, and you can find free pdf forms online for various counties, such as the Tarrant County Affidavit for Non-Prosecution form.

Each county is different, and will have its own format and procedure for these Affidavits.  Each of them shares the similar language that states the victim wants the case to be dismissed or that the victim does not want to testify against the accused in court.  These are formal affidavits, signed in front of a notary public after the witness has been sworn.

In my experience, these Affidavits of No Prosecution are pretty much useless in getting a prosecutor to drop any criminal charge.  ADAs and AUSAs are building their cases with much more than the victim’s statement.  There can be medical records, CCTV or Ring camera videos, fingerprints, DNA evidence, and more witness testimony in the state’s file.

An Affidavit of No Prosecution alone is not going to help a defendant.  There usually needs to be more than that.

Criminal Defense and Dropped Charges

Anyone suspecting they are the target of a criminal investigation or those who have been arrested on felony criminal charges in state or federal court here in Texas is wise to obtain the assistance of an experienced criminal defense attorney to advocate on their behalf.

Prosecutors can be very aggressive in deciding what crimes are to be pursued in criminal charges, and perhaps they have been a bit optimistic or even overreaching in their assessment.  A deep dive into their file may also reveal constitutional violations that weaken their case substantially.

Criminal charges can be dropped unilaterally by the prosecution, but that’s much less likely to happen than when a defense lawyer brings to light through investigation, research, and negotiation the reasons why the accused should not face the selected charges.  Dropped charges are often the result of a savvy defense strategy.

For more, read:

• Encounters with Law Enforcement: A Criminal Defense Perspective
• Federal Investigations:  Target Letters, Proffers, and Plea Deals
• 5 Things to Know About Plea Bargains.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read “Top 5 Mistakes in Defending a Texas Criminal Case.”