CrR 8.3 gives two tests for dismissing a criminal charge:

1.                  CrR 8.3 (a) – when the prosecutor sets forth reasons in a written motion, the court has discretion to dismiss the criminal charge and

2.                  CrR 8.3(b) – when the court moves to dismiss because the prosecution has engaged in arbitrary action or misconduct which materially prejudiced the defendant.  The trial court must set forth its reasons in a written order.

To dismiss under CrR 8.3(a), without prejudice, the rule used to be that it cannot be done to avoid speedy trial. State v. Edwards, 616 P.2d 620 (1980).  The Court of Appeal modified this ruling in State v. Bible, 892 P.2d 116 (Wash. Ct. App. 1995), and held that avoidance of speedy trial cannot be the ONLY reason.  Dismissing the charges against Bible without prejudice was appropriate because the principal witness had moved out of state.  Bible, 892 P.2d at 117. The Court also considered the complexity of the case and the amount of time before expiration of speedy trial (15 days). Bible, 892 P.2d at 117.

To dismiss with prejudice under CrR 8.3(b), the court must find prosecution misconduct or an arbitrary action which materially prejudiced the defendant.  This remedy is the last resort.  State v. Koerber, 931 P.2d 904 (Ct. App. 1996).  It should not be employed for minor acts of negligence by third parties, beyond the State’s direct control, when the defendant is not materially prejudiced. Koerber, 931 P.2d at 905.  For example, when the state’s witness had the flu and was uncertain when they would recover, the court found no government misconduct.  Id.  Nor was it misconduct when the State called a witness’s family for more than six weeks with no results.  State v. Wilson, 161 Wash. App. 1003, 4 (Wash. Ct. App. 2011).

In an unpublished opinion, the court of appeal held that under 8.3(a) or (b) it is within the trial court’s discretion to grant the dismissal with or without prejudice because the rule neither uses the terms with or without prejudice, nor limits its ability to do so. State v. Garrett, 108 Wash. App. 1015

The WA Supreme Court disagreed, at least in part.  It held that a criminal charge can only be dismissed with prejudice if the defendant shows, by a preponderance of the evidence, government misconduct AND prejudice affecting the defendant’s right to a fair trial. State v. Rohrich, 71 P.3d 638,641 (2003) citing State v. Michielli, 937 P.2d 587, 592-93. Some examples of government misconduct include:

a.       Prosecutor knew ahead of time the witness was leaving the country and took no steps to secure her testimony.  State v. Garrett, 108 Wash. App. 1015 (Wash. Ct. App. 2001) unpublished;

b.      State charged wrong crime, amended the information to correct it the day before trial, after defense moved for dismissal, and failed to produce enough evidence to support the correct charge.  State v. Sulgrove, 19 Wn. App. 860, 862, (1978); and

c.       Witness disobeyed a court order based on State’s incorrect advice and state was not ready for trial. State v. Stephans, 736 P.2d 302 (1987).

CrR 8.3(b) is designed to protect against arbitrary action or governmental misconduct and not to grant courts the authority to substitute their judgment for that of the prosecutor. State v. Starrish, 544 P.2d 1, 4 (1975) cited with approval by State v. Meas, 75 P.3d 998, 1000 (Ct. App. 2003). 

Does this mean that if the prosecutor asks for dismissal with prejudice, the court cannot grant dismissal without prejudice?  In that situation, would the prosecutor be admitting misconduct or would the defendant still have to show misconduct AND prejudice affecting his right to fair trial? To allow the trial court to override the prosecutor’s judgment seems too broad an interpretation of Rohrich (requiring misconduct AND prejudice).  The holding in Rohrich was to protect a prosecutor who was not at fault from having his case dismissed with prejudice, not to give the court an inherent authority beyond the dictates of CrR8.3(b).

This scenario probably does not come up too often, and when is it a good idea to argue that the judge does not have the authority to dismiss without prejudice?  But, if the judge does dismiss without prejudice it may not be appealable because it is not a final order.  This is a topic for another post. For now, remember that government misconduct does not have to be willful, only negligent.  

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