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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 23192
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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IF a case has a hearing, and the judge has to rule, and the

Customer Question

IF a case has a hearing, and the judge has to rule, and
the defendant should get charges dismissed based
on a case that is in the books with a law backing
it up which is the same type case with the same
law in effect, and that law applies,
if nothing else has changed, they will
always rule in that way, for the dismissal, right?

In other words, is that the way it is?

When would that not happen, it would be a mistake
then, right?
Submitted: 6 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 6 years ago.
The answer depends on where the cited case came from and what court delivered the ruling. It may only be persuasive authority rather than binding authority.

Edited by FranL on 7/3/2010 at 7:10 PM EST
Customer: replied 6 years ago.

Does binding authority always work to dismiss charges?





Customer: replied 6 years ago.

Does binding authority always work in that type of case, meaning

inevitably? For the dismissal, as in my original question.


How often does persuasive authority work for the dismissal in that

type case?

Expert:  Zoey_ JD replied 6 years ago.

No. Binding authority doesn't always work, though it most times it will. When a court feels that the equities in a particular case don't call for a dismissal because it would create a miscarriage of justice, it will find a way to distinguish the two cases on the facts and deny the dismissal under those (and then in other cases which are similar in that way) circumstances.

Few things in law are absolute. Determinations regarding dismissals are generally on a case-by-case basis.

As for persuasive authority, that will depend entirely upon how the judge sees a particular case. If it's a close call, he'll ask both sides to put the argument on papers, and once he's read both memos of law he'll rule.

It's not meaningful to talk about "how often" or "what percentage of the time. . . " because the answer is going to be dependent on the facts of the particular case in front of the judge. However, if caselaw shows that an argument for dismissal is there to make, it should absolutely be made. And if the judge denies the dismissal, it should be objected to, thus preserving the issue for appeal if ever relevant.

Edited by FranL on 7/4/2010 at 12:23 PM EST

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