Oftentimes folks think the defense can file a motion to dismiss and have the Court dismiss a case. While this is an option under limited circumstances, typically the Judge does not have the power to dismiss a case. The prosecutor is the one who brings the charges and the prosecutor is the one who can dismiss the charge. A judge can find that no probable cause exists and force a prosecutor to dismiss the case.
At trial, once the prosecutor concludes their case, the defense can move for what we call a “directed verdict” arguing to the court that the prosecution failed to prove one or more of the elements of a case. If granted, then the case is thrown out.
What are elements of a crime?
For instance, in a Driving While Intoxicated case, at trial the State must prove that:
-it was this person;
-in this county;
-on or about this date (case law says it does not have to be the exact date);
-operating (very broad definition of what “operating” means);
-a motor vehicle;
-on a public roadway (parking lots included);
-intoxicated by not having the normal use of their mental and/or physical faculties or
-by having an alcohol concentration greater than .08 at the time of driving.
So if at trial the prosecutor proves every element, but forgets to get testimony that the offense occurred in the county in which the client is being tried, then a judge can grant a directed verdict and the case is over. Since a jury has been sworn to hear the case, then jeopardy attaches and the person cannot be retried.
The role of the judge is basically that of an umpire – calling legal balls and strikes. Judges know very little about the FACTS of the case. Their role is to be the legal gatekeeper of what is admissible into evidence and what is not. Judges are to be fair and impartial in their role.
The role of the prosecutor is to serve justice, whatever that may be – by prosecuting a case or dismissing a case.
The prosecutor’s role is set out in the Texas Code of Criminal Procedure:
Art. 2.01. DUTIES OF DISTRICT ATTORNEYS. It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.
The role of the criminal defense attorney is to protect a client’s Constitutional rights and interests. The criminal defense attorney is the voice for the client.
Defense attorneys assess each client’s case, collect information, keep the client updated, perform careful analysis using their knowledge of the law and handle stressful situations for the clients.
Before hiring a good criminal defense attorney, it is important to know about his or her roles and responsibilities so that you can keep a track of the attorney’s work and progress. A criminal defense attorney plays a very important role in the legal system and, thus, it is important that he or she is committed to those roles and responsibilities so that the clients may get a fair resolution.