Q Help! I’ve been wrongfully arrested. Can I get my case dismissed?

A From time to time I talk to defendants in criminal cases who are adamant that their cases must be dismissed. They, typically, have no clue how the system works and why outright dismissal is a pipe dream. A brief overview of the mechanics of a prosecution might be illuminating.

First, the police investigate an incident and write a report. They then send this report to the district attorney’s (DA) office recommending that the DA file charges. The report is often written in a way to make the arrestee look guilty. Police are often very honest and good reporters, but sometimes they omit key facts or put a bit of spin on the situation.

The DA’s office decides whether or not to file charges. They have sole discretion over whether and what charges to file and their decisions critically affect the outcome of a case.  At the time they decide to file charges, especially in misdemeanors, all they are looking at is the accused person’s criminal history and a police report. The report may be well investigated and written in a balanced and fair manner. Or, it could be that the officer has decided that the accused must be lying or guilty and therefore, the report is written with a slant to make the defendant look bad.

Filing cases is often a hurried and haphazard affair. The district attorneys who decide whether or not to initiate a prosecution typically do not get any input from the accused’s side before making the decision. Since cases must be filed in a timely manner, (within two days of an incident when the accused is in custody, for example) there is pressure to move quickly.

Second, district attorneys tend to believe that everything that they read in a police report is absolute truth. In my experience, they are less concerned about the veracity of the prosecution’s witnesses, but tend to disbelieve anything coming from an accused’s mouth. It is an uphill task to convince them otherwise.

Finally, there is the distinct possibility that the case does have merit and that the person arrested did in fact break the law. The vast majority of cases end with a defendant entering a guilty or no contest plea to some charge. In my personal experience, over 95 percent of cases end with pleas. With those kinds of numbers, district attorneys can safely believe that the police report accurately recorded the event.

The thing to remember is that there is very little oversight to the exercise of discretion by a district attorney’s office. The district attorney is an elected official, but there is very little that people can do to influence his or her policies until the next election.
If you still think your case should be dismissed, the best thing to do is to get an attorney to take a look at the case, conduct an independent investigation, and approach the district attorney informally or take it up in the court with formal proceedings.

Naresh Rajan is an attorney in San Mateo County. Email nrajanlaw@gmail.com.

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