Death Of Defendant In a Criminal Case: What Happens Next?

Generally, if a defendant dies while a criminal case is still open or pending, the case gets dismissed.

But it’s not always that simple.

We’ll explain.

Death Of Defendant In A Criminal Case (WHAT HAPPENS?)


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The Presence Of The Defendant Is A Necessary Component

The defendant is the heart of a criminal case.

The criminal case is against him or her for something he did (or didn’t) do.

While obtaining restitution payments for the victim is a side benefit of the case, justice is the ultimate goal.

If the defendant dies, then justice cannot be obtained against him, even though it would help the victim to have that judgment of restitution.

How Does A Criminal Case Get Dismissed When The Defendant Dies?

Upon receiving notification that the defendant is deceased, whoever has the information will notify all the other involved parties (attorneys and pro se parties).

In some instances, the prosecutor will move to dismiss the case voluntarily in a written motion or orally at the next hearing involving the defendant upon receiving the information.

In some instances, the prosecutor will move to postpone all hearings on the case until “proof” of the death can be obtained.

(After all, it is not unheard of for people to try and get out of criminal prosecutions by ‘dying.’)

Proof could come in the form of:

  • death certificate
  • police report
  • medical records
  • witness statements
  • law enforcement witness statements
  • personal observations (visiting the morgue, for example)

In any case, either party (prosecutor, defense attorney) or even the court on its own motion can move to dismiss the case.

The judge may require the defense attorney or prosecutor to submit evidence in support of the motion.

Or to get the case off the docket, the judge may dismiss the case without prejudice in case the defendant suddenly reappears at a later date.

What Happens To The Restitution If The Defendant Dies?

If the defendant dies before the judgment of restitution can be entered, the case is dismissed, regardless of what point the case is at.

For example, if the jury returns a verdict, and the defendant is sentenced in open court, but the judgment is not filed, the case will likely not proceed.

As a result, a victim (or the state on behalf of the victim) cannot pursue recovery of the judgment from the defendant’s estate.

Instead, the victim would likely need to pursue claims against the defendant’s estate from the beginning for the losses suffered as a result of the defendant’s behavior, assuming the the applicable statute of limitations has not already passed and the local laws allow the victim to pursue the defendant’s estate for the damages.

If the judgment of restitution has already been entered, the victim should be able to pursue recovery of the judgment through the estate proceeding.

What Happens To The Case If The Defendant Dies While The Case Is On Appeal?

It is our understanding that the appeal would be dismissed if the defendant dies while the case in on appeal and the original final judgment would be left in place.

That being said, the underlying case that proceeded to full and final judgment may also be dismissed in some jurisdictions, though the law isn’t necessarily clear that this is necessary or even the correct outcome.

What Is Abatement Ab Initio and Will It Apply When The Defendant Dies?

Abatement ab initio is the legal term for vacating everything that happened in the case all the way back to the very beginning.

If a case is abated ab initio, the case (and the defendant) are treated as though none of it every happened.

The application of abatement ab initio is not consistent throughout the United States when a defendant dies.

It is most commonly seen used in situations where the defendant dies during an appeal.

In those cases, if abatement ab initio not only halts the appeal, but also vacates, removes, and deletes the underlying proceeding, as if the original conviction/decision had never happened.

In some jurisdictions, abatement ab initio is used when the defendant dies during the pendency of the original case, before a judgment of any kind can be entered.

In the last few years, it appears that courts are moving away from the use of this doctrine.

For the victim, having the case completely vacated after a judgment of restitution had already been entered would be a significant blow, as the victim would then be left with the responsibility of pursuing the defendant’s estate for the damages.

The judgment would be much easier to collect on from the estate than having to start the claim from scratch against the estate.

Wrap Up

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