Shoplifting Defense Strategy #2: Failure of Witness to Appear in Court

Another defense strategy that Travis Tormey uses to fight shoplifting cases involves the filing of a motion if the prosecutor is not prepared to proceed with the case against you. The state must prove the case against you beyond a reasonable doubt. And you have the right to a trial.

If the store representative, the prosecutor’s most important witness, is not present in court, then he or she will be unable to testify against you. And if the store representative is unable to testify against you, then the prosecution is not going to be able to prove its case.

A police officer most likely signed the complaint against you. But, in all likelihood, the police officer did not actually witness any of the alleged conduct that prompted the complaint. He or she was not in the store when you were allegedly taking the goods that you are charged with stealing. The store representative – the security personnel or the person working the cash register – was in the store. This person has to appear in court and tell the judge exactly what happened. Put simply, this person must testify against you. If this person is unavailable, the police officer who signed the complaint against you cannot tell the judge what happened. This would constitute hearsay. In essence, the police officer lacks independent knowledge of what happened because he or she did not witness it.

As a result, if the store employee does not appear in court, Mr. Tormey will file a motion to dismiss the case against you. Often, the court will dismiss the case outright if the case is marked for trial. Alternatively, the court may mark the case a second time for court, which is known as a “try or dismiss” listing. The court will then subpoena the witness and send an official notice. If the witness still fails to appear, the case against you will be dismissed.

If you have been charged with shoplifting in New Jersey, it is imperative that you have an experienced criminal defense attorney representing you in court. If you do not have an attorney, the judge will typically “carry” the case a number of times and give the prosecutor several chances to allow the store employee to show up in court. With an experienced attorney standing by your side and filing motions each time you go to court, the case will be thrown out much faster. If you want to give yourself the best chance of getting the case against you tossed out of court, speak with an attorney immediately.

What is the Statute of Limitations for a Shoplifting matter?

The statute of limitations for a disorderly persons offense is one year from committing the crime.  For an indictable offense, it is five years from committing the offense.  Moreover, for a downgraded shoplifting offense, it is one year from the date the original charge was filed. In some cases, a knowledgeable lawyer can get the charges dismissed based on statute of limitations expiring. 

Best Defenses Against New Jersey Shoplifting Charges

A conviction for shoplifting can have serious consequences. Even if you are convicted of a disorderly persons offense, you can be sentenced to up to six (6) months in the county jail. And having a theft offense appear on your criminal record can damage your reputation and your job prospects.

There are three (3) other shoplifting defenses that we often use to defend our clients in shoplifting cases. These defenses include:

If you have been charged with shoplifting in New Jersey, contact the Hackensack offices of The Tormey Law Firm at (201)-330-4979 for a free consultation about your case.


If you’ve been charged with a criminal offense, disorderly persons offense, or traffic / DWI violation, you have the right to an attorney who will defend you against your charges and fight for your best interests. To learn more about how your attorney can fight to have your charges dismissed or reduced, click a link below to see our video library of legal defenses and strategies.