Almost every time I’m in general sessions (typically 5 days a week) I hear an attorney ask that a case be dismissed because the State has failed to bring a victim/witness to court to testify against the accused. When the judge challenges them, the attorney usually responds stating that “the case has to be dismissed, it’s the law,” or the “Tennessee Constitution requires that the case be dismissed because the State did not bring a victim.” Both statements are, unfortunately, incorrect.
In general session, when the defendant is in custody, the State has 10 days from the date of arrest to get their victim/witness to court to testify in a preliminary hearing; and 30 day when the defendant is on bond. The accepted practice, in Davidson County, is that the case will be dismissed if the State cannot produce a victim/witness within the ten day/thirty day timeframe. But where does this rule come from? The Tennessee Rules of Criminal Procedure, Rule 5 states in part, that: “…The magistrate shall schedule a preliminary examination to be held within ten days if the defendant remains in custody and within thirty days if released from custody…” Tennessee Rules of Criminal Procedure 5(c)(B). This might be the most misunderstood rule in Tennessee criminal law.
Though the Rule seems straight forward, it really isn’t. Defendants are left unsure of what to expect because the Rule does not specify what will happen if the hearing is not scheduled within the timeframe. In Davidson County, this Rule has come to mean that a defendant’s case will be dismissed when the State cannot produce a victim/witness to testify against the accused within ten days of their arrest. And in the case of a defendant who is on bond, the judge will usually dismiss the case against them when the State cannot produce a victim by the third setting (Settlement, trial, and one continuance requested by the State).
But the question is; if the State cannot produce a victim, is a dismissal of the case required? In short, no. However, since the local practice in Nashville is to dismiss the case when there is no victim/witness present, it is a common belief that the law requires the cases to be dismissed. Unfortunately this is not true. The Tennessee Rules of Criminal Procedure mandate that there shall be a preliminary hearing scheduled within the specified ten day/thirty day timeframe, but the Rule is silent on any remedy when a preliminary hearing is not scheduled within the allotted time.
So what does this mean to people accused of a crime? It means that a dismissal is not guaranteed. No matter what people are saying in jail, or what has happened in the past. The judge is not required to dismiss the case.
Hiring an experienced attorney will increase the chances of having a case dismissed when the State cannot bring a victim/witness to court to testify. In order to increase the likelihood of a dismissal, we will check to see if/when subpoenas were served on a victim/witness, we will speak with the District Attorney about their communication with the victim/witness, we will speak with the victim/witness coordinator about their communication with the victim/witness, and we will see how many times the case has been set for hearing. When the judge calls the case during docket call, we will inform the judge of everything we know about the previous settings, and then request a dismissal of failure to prosecute. This isn’t a guaranteed dismissal, but when the attorney is as prepared as we are, with all the information, the likelihood of a dismissal is significantly improved.