Dismissal rule would promote accountability

August 27, 2004

Dear Editor:

Mr. Stephen Knight of Danville recently wrote a letter to the editor in The Advocate-Messenger questioning a proposed amendment to the Kentucky Rules of Criminal Procedure. The letter raises thoughtful questions that deserve an answer from me. Mr. Knight is to be commended for bringing the issue to public attention.

The proposed rules amendment permits trial judges to dismiss criminal cases "without prejudice" if no steps are taken for one year and the prosecutor does not adequately explain the failure to move forward with the case. One charged with a crime is presumed to be innocent until proven guilty. Doubtless, however, pending criminal charges without a timely determination of guilt or innocence burden the person charged by subjecting him or her to the jurisdiction of the court, possible restriction of freedom, and the requirement of giving bond to obtain pre-trial release. It is unfair to the police, the victims, the defendant, and the criminal justice system to leave criminal charges unresolved for excessive periods of time.


Under the proposed rules amendment, any dismissal would be without prejudice. This simply means that the charge could be brought again and that the dismissal would not amount to a final determination of guilt or innocence. The possibility of renewing charges provides an important safeguard in the event a prosecutor or crime victim believes a case was improvidently dismissed. Of course, the rule would not apply where the defendant is unable to be located, has fled to avoid prosecution, or where scientific testing of evidence has caused the delay.

The purpose of this rule is to eliminate cases where charges have been brought but not pursued for one year. Such a common-sense rule amounts to an incentive to prosecutors to make sure that all cases in which charges are brought receive the prompt attention they deserve. As a practical matter, no judge would dismiss a criminal case, knowing that it could be re-brought, over the protest of a prosecutor who gave a reasonable explanation for the delay. The dismissal rule is designed to promote accountability and to weed out those cases in which the charges lack substantial merit.

As a final thought, it should be remembered that the trial judge is a neutral arbiter. Judges do not prepare for cases for trial, interview witnesses, or otherwise intrude on the responsibilities of the prosecutor and defense counsel. Judges can and do insist on prompt performance by the lawyers, but ultimately the responsibility for presenting the evidence rests with counsel for the commonwealth and defense counsel.

Joseph E. Lambert

Chief justice

Supreme Court of Kentucky

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