With Court’s Leave, Prosecutors May Dismiss Grand Jury Indictments

State v. Bird, No. 120,816 (Kan. Ct. App., Feb. 19, 2021).

Author: Andrew Tague, Staff Editor

Issue: Under Kansas common law, a prosecutor may dismiss or reduce any charge against a criminal defendant.  Kan. Stat. Ann. § 22-3015(b), however, generally prohibits prosecutors from substantively amending indictments returned by grand juries.  May a prosecutor dismiss an indictment?

Answer: Yes.  The State’s authority over a criminal prosecution includes the inherent ability to dismiss any charge, regardless of how the case was initiated.

Facts: A grand jury indicted Bird on two counts, both stemming from alleged sexual advances toward a 14-year-old girl in a restaurant.  Because of a defect in its mens rea language, the district court dismissed Count 2 of the indictment.  The State, wishing to pursue an appeal of the district court’s dismissal of Count 2, dismissed Count 1.

In his cross-appeal, Bird challenged the State’s dismissal of Count 1.  He noted that Kansas law generally prohibits prosecutors from substantively amending indictments and does not specifically authorize prosecutors to dismiss indictments.  From these premises, Bird argued that the State’s dismissal of Count 1 constituted an unlawful “substantive amendment” to the indictment.

Discussion: In the absence of Kansas law expressly allowing prosecutors to dismiss indictments, the Court of Appeals noted longstanding Kansas Supreme Court precedent recognizing prosecutors’ authority to dismiss criminal charges.  This authority stems from the common law doctrine of “nolle prosequi,” which permits prosecutors to formally enter into the record their decision to cease prosecuting a criminal defendant.  The prosecution may only do so with the district court’s consent and Kansas courts have historically required district courts to consent.

After noting that other jurisdictions, including federal law, generally permit prosecutors to dismiss indictments, the court also considered the absurdity resulting from a rule categorically prohibiting the State from dismissing indictments.  If key witnesses are unavailable during trial—or the prosecutor realizes there is no longer evidence to support the charges—then barring the State from dismissing indictments would run afoul of a prosecutor’s ethical duty to only pursue charges supported by probable cause.  Combined, these considerations led the court to conclude that the State can dismiss a grand jury indictment with leave of the court.

Key Authorities: State v. Turner, 576 P.2d 644, 646 (1978) (stating that county or district attorneys have authority to dismiss or reduce any charge).

Kan. Stat. Ann. § 22-3015(b) (Supp. 2017) (prohibiting the substantive amendment of an indictment except for the “limited purpose of effecting a change of plea” by the defendant).

Kan. Stat. Ann. § 22-3201(e) (Supp. 2017) (allowing prosecutors the authority to amend a complaint or information—but not an indictment—with leave of the court if no new crime is charged and the defendant is not prejudiced).

Kan. Rule of Pro. Conduct 3.8(a) (prohibiting prosecutors from prosecuting a charge that “the prosecutor knows is not supported by probable cause”).

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