A common question that I get from clients is, “What happens if the cop doesn’t show up?” Does my case get dismissed?
Of course, the answer depends.
It may depend on what court you are in, how many times the officer has failed to appear, what you are charged with, whether there is an alleged victim in your case, whether a prosecutor is assigned to the case or the officer is prosecuting the case alone, whether you have a defense lawyer, and who your judge is on that day.
It may also depend on why the officer didn’t show up. For example, the officer may know they have a weak case and they are avoiding it on purpose. On the other hand, they may have a legitimate excuse for not being there on that day.
Will your case be dismissed? Maybe…
What Happens if the Cop Doesn’t Show up in Magistrate Court?
In the magistrate court (county) or the municipal court (city), your case is more likely to be dismissed for failure to prosecute if the officer does not show up.
Magistrate and municipal level offenses are less serious, and the officer may be the only prosecutor. If no one is there to prosecute the case, and your attorney is there pushing for the judge to dismiss for failure to prosecute, the judge has two choices: continue the case or dismiss it.
What Happens if the Cop Doesn’t Show up at My Roster Meeting?
In most lower courts, your case will be scheduled for a “roster meeting” (or pretrial conference, depending on the court) before your case is scheduled for trial.
The roster meeting has two purposes – 1) it could be an opportunity for your attorney and the state to “work out” your case, whether that is an acceptable plea agreement or a dismissal of your charges, and 2) your attorney will set a trial date if the case is not worked out (or the case is continued).
In most cases, it doesn’t matter if the arresting/charging officer shows up at your roster meeting. Ordinarily, a supervisor from the officer’s department will be present, cutting deals and setting trial dates for all officers. If your officer is not there, your case is not dismissed. If the case is not resolved, their supervisor will set a date for trial.
What Happens if the Cop Doesn’t Show Up at My Trial?
The trial date in magistrate court is different, however. The arresting officer may be the only prosecutor on your case. They might also be the only witness against you or the most important witness against you – in either case, if he or she is not there, the case cannot go forward.
If you have set a trial date and dutifully appeared on that day because you want a trial, and the officer just doesn’t show up, your case should be dismissed for failure to prosecute. That doesn’t mean that it will, however. Depending on who the judge is, whether the officer let someone know ahead of time, what their excuse is, and whether it has happened before, the court might dismiss the case, or they might continue your case until the next term of court.
Unfortunately, it also makes a difference if you have a criminal defense attorney advocating for dismissal of your case. Pro-se defendants often don’t know what to ask for, who to ask, or how to say it, which too often results in prosecutors, judges, and officers “steamrolling” them into pleading guilty or accepting an unfair result.
What if there is an Assistant Solicitor Prosecuting the Case?
Many cases in the magistrate court are prosecuted by assistant solicitors. Similarly, most municipal courts have a prosecuting attorney who will be in charge of your case.
When there is a prosecutor who is present and willing to go forward, the court will not dismiss your case for failure to prosecute. But what happens if the officer doesn’t show up and they don’t have an essential witness?
In most cases, the prosecutor will subpoena their witnesses – if there is a prosecuting attorney on your case, the officer probably will show up on your trial date or at least be on call. If they don’t, the prosecutor will usually make the call as to whether to dismiss the case because their witness is not cooperating or to ask the court for a continuance.
Usually (but not always), when the prosecutor asks the court for a continuance because a witness failed to appear, unless it happens after the start of trial, the court will grant the continuance. If the prosecutor is unable to contact their witnesses or bring them to trial, the court expects the prosecutor to do the right thing and dismiss your case without the court’s intervention…
What Happens if the Cop Doesn’t Show Up in General Sessions Court?
If you are charged with a General Sessions level offense, you will have a prosecutor who is assigned to your case, and they are not likely to call your case for trial if their witnesses are unavailable.
Although the prosecutor is obligated to 1) tell you (an uncooperative witness is Brady material), and 2) dismiss your case if they do not have sufficient evidence to go forward, they will often seek continuances or even attempt to get you to plead guilty without telling you that their witness is unavailable.
Eventually, your attorney can file a motion to dismiss for violation of your right to a speedy trial and for failure to prosecute, but it’s not likely that your case will be called for trial and the officer just doesn’t show up.
What Happens if the Cop Doesn’t Show Up for the Preliminary Hearing?
Preliminary hearings are another story, however.
In Horry County, there will be a representative from the solicitor’s office present to handle the preliminary hearings for the state, but they cannot testify. If there is no police officer with personal knowledge of the allegations there to testify, all the solicitor can do is ask the court to grant a continuance.
Despite several administrative orders directing magistrates to dismiss cases when officers do not appear, magistrates will often grant the continuance anyway. It may be a toss-up, depending on which judge you have and how annoyed they are at officers not showing up on that day…
At the preliminary hearing, if the officer is not present, your attorney should not consent to a continuance and should insist that the court dismiss your case for failure to prosecute. If the court grants repeated continuances because the officer doesn’t care enough to appear at the prelim, your case will eventually be indicted, and you will lose your right to a prelim.
On the other hand, if your case is dismissed at the prelim, you can still be indicted, and your charges may be revived.
So, will your case be dismissed if the cop doesn’t show up? It’s a complex question that depends on many different factors, not the least of which is whether you have a competent criminal defense lawyer advocating for your case to be dismissed…
SC Criminal Defense Lawyer in Myrtle Beach
Daniel A. Selwa is a criminal defense attorney in Myrtle Beach, SC.
Call now at (843) 492-5449 or send an email for a free consultation to discuss your case and how we can help.