Can a Victim File a Motion To Dismiss? (In a Criminal Case)

No, while the victim in a criminal case has certain guaranteed rights, the ability to file a motion to dismiss is not one of them.

Let us explain why.

Can a Victim File a Motion To Dismiss? (In a Criminal Case)


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Introduction to Victim’s Rights

No one wants to be the victim of a crime.

But if you are the victim, there are a bunch of statutory rights you can take advantage of.

Some of those rights are automatic, while others have to be requested.

They include:

  • the right to be notified in advance about certain hearings involving the defendant
  • the right to speak at certain court hearings
  • the right to be consulted about negotiated resolutions
  • to have a support person attend hearings with them
  • to have their personal information (such as address and phone number) kept away from the defendant

Victim’s Role In The Case

While the victim’s rights statutes give the victim a greater role in the case, these statutes do not elevate the victim to party status.

The parties to a criminal case are the plaintiff (the government, represented by the assigned district attorney) and the defendant (the person who is accused of committing the crime, represented by his chosen defense lawyer).

The parties to the case (and their lawyers) have the right to file motions, to argue with the judge, to ask for relief, to offer evidence, to subpoena witnesses, all the things.

The victim in the case has only the rights afforded to him as a victim, and also as an individual under the state and federal constitutions.

In a criminal case (and a civil case), the only people who can file motions in the case are the ones granted party status.

In general, those parties are plaintiff and defendant.

In isolated instances, other individuals, government agencies, or even companies may be granted part status as third-parties, and are allowed to participate fully like plaintiff and defendant.

To be granted third-party status, the individual or agency wanting to participate has to file a motion to intervene.

It is rare for a motion to intervene to be filed in a criminal case, and it is hard to imagine many situations when it would be granted (aside from the federal government filing to join the case).

Victims would rarely (if ever) have grounds to file a motion to intervene as a party.

What Is The Victim’s Role?

The victim’s primary role in a criminal case (aside from the rights provided by statute) is to provide evidence if necessary against the defendant to secure the conviction.

The victim can voluntarily agree to appear to testify, or the district attorney can/will subpoena the victim to testify.

The victim does not have any control over filing of charges or dismissal of them.

The victim cannot direct the case, or make strategic decisions.

While the district attorney may choose to provide information to the victim about the status of the case, the DA is not required to do more than the victim’s rights statutes guarantee.

What If The Victim Wants The Case To Be Dismissed?

There are many reasons why a victim might want the case to be dismissed.

And he is welcome to tell the district attorney all about it, in person, over the phone, and in writing.

But in the end, the victim doesn’t have any say in it.

And all of the statements to the DA (in person, on the phone, and in writing) could potentially be used as evidence in the case that the victim wants dismissed.

Wrap Up

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