John Helms, former prosecutor, and Dallas criminal attorney explains why talking to the judge is useless and why hiring a top criminal lawyer is critical.

I am often asked by people who are unfamiliar with the criminal justice system if they can “just go talk to the judge,” hoping that the judge will dismiss their case or help them with it in some way, says Dallas criminal attorney John Helms.  Whether your case is in state or federal court, the answer is, “No.”  Even lawyers cannot talk to the judge about anything substantive about a case without the prosecutor present.

Judges have to be fair and impartial, so they are not allowed to have private discussions about the merits of a case with only one side.  This is called an “ex parte” communication.  “Ex parte” is a Latin phrase that means “from, by, or for a party.”  The rule against these private discussions also means that the prosecutor cannot talk to the judge privately about the merits of a case without the criminal defense lawyer present.

There are some situations in which a judge may communicate with only one side, but they have to do with purely administrative issues.  These include, for example, scheduling things on the court’s docket.

If a judge has a private discussion about the merits of the case with only one side present, this can be the basis to ask that the judge be removed from the case.  This is very, very rare, though, and the fact that you may see a prosecutor walking out of a judge’s chambers does not mean that they have been discussing the merits of the case.  Unless you are sure (way more than a suspicion or guess) that the judge was discussing the merits of the case, it can be very risky to seek to remove a judge based on an improper communication.  You are likely to be wrong, the judge is likely to stay on the case, and you are now stuck with a judge whose integrity you have publicly challenged.  I have represented a party on appeal whose criminal defense lawyer tried to get a judge removed for this, and it backfired in a big way.

If you can’t just go talk to the judge, can your lawyer talk to the judge and ask that your case be dismissed?  Again, the answer is “No.”  In order for your case to be dismissed by a judge before trial, your criminal defense attorney must first file a written motion asking the judge to dismiss the case.  The motion must set out why the law says the case must be dismissed.  The fact that you disagree with the accusations against you is not a reason to dismiss the case.  That is why we have juries.  A jury decides what the facts are and whether you are guilty or not guilty.

There are some situations in which a judge can dismiss a case before trial, but they are generally legal reasons, like the fact that the statute of limitations has run out, or that the evidence against you was obtained by an illegal search, or that the indictment is not sufficient to charge you with a crime.  These are issues that a lawyer should raise by a written motion.  The Government then gets a chance to respond, and the court may allow oral argument in open court on the issues.

Can I just go talk to the prosecutor and ask him or her to dismiss my case?  The answer is that there is no legal rule that prevents this, but as a practical matter, you are much better off if a criminal defense attorney does this for you—especially a lawyer the prosecutor respects.  Prosecutors tend to be very skeptical of criminal defendants, because it is so common for criminal defendants to say they are not guilty even though they are.  Prosecutors are not required to believe anything you say, and they generally won’t, unless you have documents or photographs to back up everything you say.

An experienced criminal defense lawyer, on the other hand, especially one who has been a prosecutor, understands the kinds of arguments and evidence that are persuasive to a skeptical prosecutor.  I have had a lot of success bringing prosecutors information and evidence that they recognize as convincing.  There is a down side, though, to laying out your defense.  If the prosecutor is not convinced, and they are often hard to convince, then you have just lost a valuable edge at trial—the element of surprise.  By laying out facts or evidence that a prosecutor does not know, you may just be telling the prosecutor what they need to do to counter your defense at trial.  The bottom line is that it takes experience and good judgment to know when it is best to lay your cards on the table and when it is better to keep them close to the vest for trial.

If you have been charged with any crime, including drug possession, fraud, assault, theft or a federal drug crimes, call Dallas criminal attorney John Helms at 214-666-8010 or visit his website.