Smithfield, VA asked in Civil Rights for Virginia

Q: What recourse do I have when a charge was dismissed, then directly indicted, then dismissed again?

I have been told the prosecutor has immunity. I lost a year of my life because of her malicious prosecution. Is there anything else I can do?

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1 Lawyer Answer
James L. Arrasmith
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  • Civil Rights Lawyer
  • Sacramento, CA

A: In cases where a prosecutor has brought charges against you that were subsequently dismissed, it can be difficult to seek recourse due to the doctrine of prosecutorial immunity. However, there are a few potential avenues you could explore:

1. Malicious prosecution lawsuit: While prosecutors generally have immunity for actions taken within the scope of their duties, there are some limited exceptions. If you can prove that the prosecutor acted with malice, without probable cause, and for a purpose other than bringing a guilty person to justice, you might be able to file a lawsuit for malicious prosecution. However, the threshold for proving this is high, and such cases are often challenging to win.

2. File a complaint with the state bar association: If you believe the prosecutor engaged in unethical or improper conduct, you can file a complaint with your state's bar association. They may investigate and discipline the prosecutor if they find misconduct.

3. Seek a pardon or expungement: Depending on your state's laws, you may be eligible to have your record expunged or sealed, which could help mitigate some of the collateral consequences of the dismissed charges. In some cases, you might also be able to seek a pardon from the governor.

4. Consult with a civil rights attorney: If you believe your constitutional rights were violated during the process, you could consult with a civil rights attorney to discuss potential legal options, such as a Section 1983 lawsuit against the government entity responsible for the violation.

It's important to note that these options can be complex and may not always be available or successful, depending on the specific circumstances of your case. Consulting with an experienced attorney who can review the details of your situation is the best way to determine your potential legal recourse.

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