I don't often hear the hard questions being asked by reporters when it comes to the details of arrests not followed by convictions, so in the public interest I will write a brief
Wintermute's Notes on this important subject, for Tennessee. Other jurisdictions may vary.
A street, or warrantless, arrest -- if the police decide to follow through with charges -- is followed shortly by a formal charging instrument in which the officer recites his or her reasons giving rise to probable cause for the arrest, in an Affidavit of Complaint to a Magistrate, either a Judge of a court with criminal jurisdiction or a Judicial Commissioner. If the Magistrate agrees there is probable cause, the Magistrate signs a formal Arrest Warrant, even though the arrestee is already in custody, often as an entry on the Affidavit of Complaint form.
Or the police -- after an investigation giving rise to probable cause that a person out of custody has committed a crime -- can present such an affidavit to a Magistrate seeking an Arrest Warrant for the alleged offender. A citizen can be the initiator of such a police investigation, and can even present the case directly to the Magistrate under Tennessee law, in which last case a Criminal Summons to appear in court will be served on the alleged offender; but that is beyond the scope of these
Notes.Lastly, a Grand Jury can listen to evidence presented to it by a prosecutor, even a citizen acting on his or her own, and return an Indictment finding probable cause that a crime was committed and that the person named in the Indictment is the offender. In that event, a Criminal (in some large counties) or Circuit Court Judge will sign a
Capias arrest warrant for the alleged offender.
Unless the defendant was already indicted by a Grand Jury, a defendant has the constitutional right to be brought promptly before a Judge with criminal jurisdiction (or in the federal system, a Magistrate Judge) for a hearing to decide whether probable cause exists to continue the case against the defendant and send it to the Grand Jury.
How does a person who has been through any of these processes wind up
not convicted of an offense?
The District Attorney's office, sometimes in consultation with the police and/or alleged victims, can decide to
nolle prosequi, or "decline to prosecute" the case, in which event the defendant is entitled to free expungement of the court and arrest records of the case.
The Judge can grant a Motion to Dismiss the case, for lack of prosecution -- usually in the case of a missing witness or witnesses -- when the District Attorney does not want to move forward with the case, or when the Judge -- after a Preliminary Examination of the case, or after a successful defense Motion to Suppress Evidence -- decides that the prosecution does not have enough evidence to convict the defendant beyond a reasonable doubt in the eyes of that Judge.
How else might a person get "dismissal" of an offense for which he or she was arrested?
Tennessee has two statutory forms of
diversion: pre-trial and judicial.
Tennessee's court system has decided that
pre-trial diversion is only available when the defendant is before a criminal court of record, where the defendant must apply to the District Attorney to have prosecution suspended for a fixed period, during which the defendant must comply with any conditions in a written agreement, at the end of which time the charges will be dismissed, without the defendant ever having to plead guilty.
Some District Attorneys use a
common law form of pre-trial diversion wherein if the defendant is not arrested for another offense for some period, often a year, the DA will move to dismiss the case.
Judicial diversion requires that the defendant plead or be found guilty, after which the defendant can make a request (which the District Attorney can object to, join in, or take no position on, either by advance agreement or not) that the judge suspend entry of the judgment of guilt and place the defendant on a special form of probation. After successful completion of such term of special probation, the guilty plea or finding of guilt will be set aside and the charges dismissed with prejudice.
The defendant again gains the right to expungement of the public records of his or her case, although in the case of statutory diversion the defendant must pay a fee for the expungement. Also in the case of either statutory form of diversion, pre-trial or judicial, the fact of diversion must be sent by the court clerk to the Tennessee Bureau of Investigation, so that prosecutors will know that the defendant is ineligible for diversion again in this state. In any case, the police and District Attorney are entitled to retain their records of the case -- but for future law enforcement purposes only, not for public inspection.
Of course, the defendant might have been found not guilty after a trial, either at the General Sessions or Criminal/Circuit Court level and therefore entitled to free expungement of court and arrest records on those charges.
In the case of a former arrestee alleging that his or her prosecutions were dismissed or that he or she was found not guilty, the followup questions should be, with regard to
each and every case:
(1) In what year and location was the arrest and for what charge or charges, exactly?
(2) In what court in what federal district, state, county, or city was the case heard and/or tried?
(3) Was the case
nolle prosequi (usually heard as "null prahst") by the District Attorney, or did the Judge dismiss the case for lack of prosecution or insufficient evidence, or were you granted diversion on the case, and if diversion, was it pre-trial or judicial diversion, or were you found not guilty after a trial?
If the former arrestee pleads ignorance to any of these questions, or to verify any answers, ask if he or she will supply details immediately, including the names of any attorneys representing him or her in each case, written waivers of attorney-client privilege regarding each case, and written waivers of any juvenile court privacy rights that may apply.
If any Tennessee reporters email me for citations to authorities or with general questions on this topic, I will do my best to respond with links and answers.
