Can I get my case thrown out for lack of evidence? - Criminal Law Questions and Answers- LawQA.com

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Can I get my case thrown out for lack of evidence?

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?

Edward  D. Dowling IV Attorney at Law
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You should make a motion to dismiss the charges. you should hire an attorney to do this.

Answer Applies to: New York
Replied: 6/15/2011

Answer By Lacy Fields
Lacy Fields, Attorney at Law, LLC
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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: 6/14/2011

Lowenstein Law Office
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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: 6/13/2011

Law Office of Phillip Weiser
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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: 6/13/2011

Law Office of Peter F. Goldscheider
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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

Answer By John Carney
Law Offices of John Carney
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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: 6/12/2011

Theodore W. Robinson, P.C.
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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: 6/11/2011

Law Office of Richard Williams
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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: 6/10/2011

Answer By Eric Mark
Eric M. Mark, Attorney at Law
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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: 6/10/2011

Answer By Andrew Subin
Law Office of Andrew Subin
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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: 6/10/2011

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