Can I get my case thrown out for lack of evidence? 44 Answers as of July 11, 2013

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?

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Edward  D. Dowling IV Attorney at Law
Edward D. Dowling IV Attorney at Law | Edward D. Dowling IV
You should make a motion to dismiss the charges. you should hire an attorney to do this.
Answer Applies to: New York
Replied: 6/16/2011
Lacy Fields, Attorney at Law, LLC
Lacy Fields, Attorney at Law, LLC | Lacy Fields
It is up to the prosecutor to decide whether or not to pursue the case. However, it will be hard to go forward without the witness's testimony. If the witness is subpoenaed that will make things more difficult. Your attorney needs to file a motion to dismiss if you are already past the probable cause hearing stage. Feel free to contact me with additional questions.
Answer Applies to: Missouri
Replied: 6/15/2011
Lowenstein Law Office
Lowenstein Law Office | Anthony Lowenstein
Depends on the extrinsic evidence available. For more information, please see my website or call me for a legal consultation.
Answer Applies to: California
Replied: 6/14/2011
Law Office of Phillip Weiser
Law Office of Phillip Weiser | Phillip L. Weiser
These types of cases are difficult as the prosecutor may still be able to introduce the witness's prior statements. The judge or jury hearing the prior statements may choose to believe they are more likely to be true than the recanted statements the witness may make now. The evidence would hinge on what is the most credible evidence. You should consult with an experienced attorney.
Answer Applies to: Kansas
Replied: 6/14/2011
Law Office of Peter F. Goldscheider
Law Office of Peter F. Goldscheider | Peter Goldscheider
The mere fact that a witness recants does not mean the case will be thrown out. The DA can use their prior statements to impeach their recantation when and if they are called as a witness. It does make the DA's case harder however. You need an attorney to assist you.
Answer Applies to: California
Replied: 6/13/2011
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    Your summary states that charges were filed against you but the witness "recanted her statements". You have not told me what you were charged with or whether the witness recanted her story to the police or if it was in writing. The DA may be able to threaten her with perjury if she signed a supporting deposition. It is not up to the witness to drop the charges but they DA may not have enough proof to convict you without her testimony at trial. I would need more information to tell you any more than that. Good luck.
    Answer Applies to: New York
    Replied: 6/13/2011
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    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.
    Answer Applies to: New York
    Replied: 6/13/2011
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    It is best not to depend on a witness recanting their story when they arrive in court to testify. The witness could be facing considerable problems if they are found to have made a false statement to police officers or court officials. However, if the witness does recant, and in no way implicates you, and there are no other witnesses to corroborate their testimony, the court could order that the case against you be dismissed.
    Answer Applies to: Alabama
    Replied: 6/13/2011
    Eric M. Mark, Attorney at Law
    Eric M. Mark, Attorney at Law | Eric Mark
    You need a lawyer. Recanted statements do not automatically end cases. The state may still be able to use the original statement.
    Answer Applies to: New Jersey
    Replied: 6/13/2011
    Law Office of Andrew Subin
    Law Office of Andrew Subin | Andrew Subin
    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.
    Answer Applies to: Washington
    Replied: 6/13/2011
    Law Office of Andrew Roberts
    Law Office of Andrew Roberts | Andrew Stephen Roberts
    You still need an attorney to deal with the DA. They still might have enough evidence to proceed and not believe witness.
    Answer Applies to: California
    Replied: 6/13/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    The best answer is that you should retain a criminal defense attorney to help you as to your rights and options, and to talk with the prosecutor on your behalf. Good luck!
    Answer Applies to: Georgia
    Replied: 6/13/2011
    Anderson & Carnahan
    Anderson & Carnahan | Stephen Anderson
    You should talk to an attorney recantation is tricky.
    Answer Applies to: Colorado
    Replied: 6/13/2011
    Bloom Legal, LLC
    Bloom Legal, LLC | Seth J. Bloom
    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.
    Answer Applies to: Louisiana
    Replied: 6/13/2011
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    Need to show up for trial and let them know you object to any continuation.
    Answer Applies to: Nebraska
    Replied: 6/13/2011
    Cornish, Crowley, Rockafellow, & Sartz, PLLC
    Cornish, Crowley, Rockafellow, & Sartz, PLLC | Jacob Peter Sartz IV
    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.
    Answer Applies to: Michigan
    Replied: 6/13/2011
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    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.
    Answer Applies to: Michigan
    Replied: 6/10/2011
    Gonzalez Law Associates P.C.
    Gonzalez Law Associates P.C. | Carlos Gonzalez
    Have an attorney make a motion to dismiss in the interest of justice or wait out the statutory period of limitations and the case must legally be dismissed... Either way make sure you have good legal representation to ensure your rights are protected.
    Answer Applies to: New York
    Replied: 6/13/2011
    Law Offices of Phil Hache
    Law Offices of Phil Hache | Phil Hache
    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.
    Answer Applies to: California
    Replied: 6/10/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Recantation is not an automatic basis to have charges dismissed. This very often occurs in cases of assault or domestic assault. The credibility of the witness may be challenged at trial and prior inconsistent statements can be used, in most cases, as evidence. You would be wise to hire experienced legal counsel.
    Answer Applies to: Minnesota
    Replied: 6/10/2011
    Howard W. Collins, Attorney at Law
    Howard W. Collins, Attorney at Law | Howard W. Collins
    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.
    Answer Applies to: Oregon
    Replied: 6/10/2011
    Thomas J. Tomko Attorney At law
    Thomas J. Tomko Attorney At law | Thomas J. Tomko
    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.
    Answer Applies to: Michigan
    Replied: 6/10/2011
    Law Office of Rankin Johnson IV, LLC
    Law Office of Rankin Johnson IV, LLC | Rankin Johnson IV
    Your lawyer should do this. You don't want to encourage the prosecutor to try harder to get the victim to change her mind again, and you can't really get a dismissal on the theory that you will win at trial.
    Answer Applies to: Oregon
    Replied: 6/10/2011
    Law Office of Tracey S. Sang
    Law Office of Tracey S. Sang | Tracey Sang
    A good attorney might be able to get a dismissal. However, it is not uncommon for witnesses to recant. Often the DA chooses to proceed anyway, using the witness's previous statement and impeaching their own witness. You didn't mention what type of case this is, but in domestic violence cases this is especially common.
    Answer Applies to: California
    Replied: 6/10/2011
    Michael Anthony Wing, P.C.
    Michael Anthony Wing, P.C. | Michael Anthony Wing
    Assuming you have not been tried yet, just have her sign a statement recanting and give it to the prosecutor. The prosecution, most likely will not want to pursue a case where the witness has changed her story. Alternatively, if she doesn't want to sign a statement, do what you can to record or have witnessed her recanting, so that at trial it doesn't change again. Stay well.
    Answer Applies to: Alabama
    Replied: 6/10/2011
    Frances R. Johnson
    Frances R. Johnson | Frances R. Johnson
    Just because the witness "recanted" does not mean the DA cannot go forward. There simply are not enough facts presented for me to give you a clear answer. You should call an attorney, provide all of the facts about your case and receive a response as to your possible options.
    Answer Applies to: Colorado
    Replied: 6/10/2011
    Arnold & Wadsworth
    Arnold & Wadsworth | Brian Arnold
    A motion to dismiss.
    Answer Applies to: Utah
    Replied: 6/10/2011
    Michael Breczinski
    Michael Breczinski | Michael Breczinski
    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.
    Answer Applies to: Michigan
    Replied: 6/10/2011
    Law Office of Thomas J. Ogas
    Law Office of Thomas J. Ogas | Thomas Ogas
    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.
    Answer Applies to: California
    Replied: 6/10/2011
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    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.
    Answer Applies to: California
    Replied: 6/10/2011
    Fitzpatrick, Mariano, & Santos, PC
    Fitzpatrick, Mariano, & Santos, PC | Raymond J. Savoy
    The procedure for having a case dismissed vary from state to state. In Connecticut you can file a motion to dismiss based upon lack of evidence. However, even if the witness recanted, the court can rely on the police investigation to pursue the case.
    Answer Applies to: Connecticut
    Replied: 6/10/2011
    Jonathan S. Willett Attorney at Law
    Jonathan S. Willett Attorney at Law | Jonathan S. Willett
    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.
    Answer Applies to: Colorado
    Replied: 6/10/2011
    The Law Office of Kevin O'Grady
    The Law Office of Kevin O'Grady | Kevin O'Grady
    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.
    Answer Applies to: Hawaii
    Replied: 6/10/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Hire a lawyer. Prosecutors will rarely dismiss a pro per case just because a witness has recanted.
    Answer Applies to: California
    Replied: 6/10/2011
    The Law Office of Harry E. Hudson, Jr.
    The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
    Well, a witness recanting does not mean that there is no evidence. It means there is a witness who said one thing at one time and now says something else. Hire a good attorney.
    Answer Applies to: California
    Replied: 6/10/2011
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    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.
    Answer Applies to: Michigan
    Replied: 6/10/2011
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    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.
    Answer Applies to: Texas
    Replied: 6/10/2011
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    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.
    Answer Applies to: New York
    Replied: 6/10/2011
    Rothstein Law PLLC
    Rothstein Law PLLC | Eric Rothstein
    Discuss this with your lawyer.
    Answer Applies to: New York
    Replied: 7/11/2013
    Law Offices of Carl Spector
    Law Offices of Carl Spector | Carl Spector
    In order to protect your legal rights you should seek out a qualified criminal defense attorney.
    Answer Applies to: New York
    Replied: 6/10/2011
    Law Office of Joe Dane
    Law Office of Joe Dane | Joe Dane
    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.
    Answer Applies to: California
    Replied: 6/10/2011
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