Nolle prosequi (/
Application in law
Nolle prosequi as a declaration is most often used in criminal cases, but in jurisdictions making use of nolle prosequi in civil lawsuits, it is used by a plaintiff that voluntarily drops its claims. In civil cases, a motion for voluntary dismissal may be made by a plaintiff instead of a declaration of nolle prosequi, depending upon the custom and rules of a given jurisdiction.
Nolle prosequi as a declaration can be made by a prosecutor in a criminal case either before or during trial, resulting in the prosecutor declining to further pursue the case against the defendant. Courts seldom challenge applications for nolle prosequi. In the United States, judges will usually sign a dismissal order prepared by the prosecution or make a docket entry indicating the disposition of the case to be nolle prosse after a declaration or motion by the prosecution.
In criminal cases in the United States it has been held improper for a court to enter an order of nolle prosequi on its own, without a motion by the prosecutor, but as to sentencing discrepancies involved in a sentence recommendation, a trial judge is authorized to reject an underlying guilty plea based upon concerns of fairness and justice or because it is presented after the plea cutoff date. The notes to Rule 48 of the US Federal Rules of Criminal Procedure (FRCRP) draw attention to the effect of the rule as contrasting with common law. Rule 48 now mandates for prosecutors to seek leave of the court before they dismiss a case via filing a nolle prosequi.
The declaration may be made because the charges cannot be proved because the evidence is too weak to carry the burden of proof, the evidence is fatally flawed in light of the claims that are brought, the prosecutor becomes doubtful that the accused is guilty, the defendant's innocence is proved, or the defendant has died. It has also been used when a federal criminal charge is brought up against a defendant when the prosecutor on a state charge for the same offense no longer wishes to pursue the case. Usually, that happens when the state prosecutor is content with the sentence on the federal charge and has no need to go any further with the original case.
In criminal cases, nolle prosequi declarations are made generally after an indictment as long as adjudication on the merits has not occurred or, in some jurisdictions, as long as a trial has not commenced. In civil cases, nolle prosequi declarations are made either before the trial begins or before a judgment on the merits is rendered, depending on the rules of the jurisdiction.
Application in civil cases
In civil cases, a nolle prosequi or voluntary dismissal may be entered as to one of several counts or claims, or as to one of several defendants, or both. In any jurisdiction, whether a motion for voluntary dismissal or a declaration of nolle prosequi is used, federal and state rules of civil procedure generally govern when, how, and why claims may be voluntarily dismissed and apply different rules to different types of claims and to whether a court may give leave to dismiss a matter with or without prejudice.
Similarity to a declination of prosecution
Nolle prosequi is similar to a declination of prosecution, which is an agreement not to prosecute made before any charges are brought or suit has been filed. A declination of prosecution may be made by an attorney or may be made as an agreement between the aggrieved party and the claimant.
In contrast, nolle prosequi is usually made after a decision to prosecute has already been made. A declination of prosecution may be made for many reasons, such as weak evidence or a conflict of interest.
- The 1868 trial of Jefferson Davis after a declaration of general amnesty by President Andrew Johnson.
- The 1902 Peasenhall Murder in Suffolk in England.
- In 1924, Connecticut prosecutor Homer Stille Cummings dismissed charges against Harold Israel, a vagrant accused of murdering a popular priest in Bridgeport, Connecticut. Cummings destroyed the evidence his own office had compiled against Israel in a 90-minute courtroom presentation. The case became the basis of the 1947 film Boomerang!
- In 1925, prosecutors elected to dismiss murder charges against the remaining ten defendants in the famous case of People vs. Ossian Sweet. It involved a black family that had defended its home against a white mob. They were defended by attorney Clarence Darrow, who was retained by the National Association for the Advancement of Colored People. The trial was presided over by Detroit Recorder's Court Judge Frank Murphy, who went on to become an Associate Justice of the Supreme Court of the United States. After an initial mistrial, Henry Sweet (Ossian's brother, who admitted he fired the shot) was acquitted by a jury on grounds of self defense; the dismissals of the charges against the ten remaining defendants followed.
- In 1957, John Bodkin Adams, who worked in Eastbourne, England, was tried for the murders of an elderly widow, Edith Alice Morrell and indicted for the murder of another widow Gertrude Hullett. When he was found not guilty of killing the former, Attorney-General Sir Reginald Manningham-Buller controversially entered a nolle prosequi regarding the latter charge. The trial judge, Mr Justice Patrick Devlin, in his post-trial book commented:
The author Patricia Cullen described Manningham-Buller's use of nolle prosequi as a 'sword of Damocles' hanging over Adams, but this is inconsistent with Devlin's account.
The use of nolle prosequi to conceal the deficiencies of the prosecution was an abuse of process, which left an innocent man under the suspicion that there might have been something in the talk of mass murder after all.
- In 1982, a prosecution concerning the play The Romans In Britain by Howard Brenton collapsed after it was demonstrated that what a witness had thought was an erect penis shown on stage during a male rape scene, was in fact an actor's thumb. The case had been brought at the urging of the morality campaigner Mary Whitehouse, who had not seen the play; it was ended with a nolle prosequi.
- In 2004, rape charges against basketball player Kobe Bryant were dropped after the complainant refused to testify.
- In 2011, as a result of his death, charges against Osama bin Laden were dropped with the filing of a nolle prosequi in a Manhattan federal court by the U.S. Department of Justice.
- Confession of error: When used by the Solicitor General of the United States, it has the same effect as a nolle prosequi, but may be used in civil suits as well.
- Deferred prosecution
- Diversion program
- Opportunity principle: in Dutch law, this is a generalized (principalized) form of nolle prosequi.
- Plea bargain
- Voluntary dismissal
- "Nolle prosequi". Oxford English Dictionary (3rd ed.). Oxford University Press. September 2005. (Subscription or UK public library membership required.)
- "Nolle prosequi". reference.com. Accessed 2012-03-02.
- "Nolle prosequi". Lewis & Short. Accessed 2017-02-17.
- A nolle prosequi can be entered at any time after the indictment or information has been signed and before verdict:R v Dunn  EngR 60; R v Colling (1847) 2 Cox CC 184; R v Sneesby (1951) St R Qd 26; R v Economou  SASC 1670; R v Heald  TASRp 16 source: R v Michael Charles Baenisch  SASC 5679 at para. 12 (28 June 1996).
- United States v. Cox, 342 F.2d 167 (5th Cir.) (en banc), cert denied, 381 U.S. 935 (1965). Involved a federal grand jury indictment against civil rights workers and the refusal by a US attorney to sign the indictment. The Fifth Circuit held that the US attorney's signing or withholding of his signature was within prosecutorial discretion and could not be coerced by the courts. See also the dicta in US v. Nixon, 418 U.S. 683 at 693, 1974, "[The] Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case." (citing Cox).
- People v. Grove, 566 N.W.2d 547 at 556, Mich. Sup. Ct. 1997, and cited by Casenote: Criminal Law – Plea Bargaining, 75 U. Det. Mercy L. Rev. 741, Summer, 1998.
- FRCRP 48 notes, cornell.edu. Retrieved 2011-11-8.
- Snead v. Jones, 169 Ala. 143, 53 So. 188; MacLaughlin v. Lehigh Valley R. Co., 93 N. J. L. 263, 108 Atl. 309; Dickerson v. Atlantic Refining Co., 201 N. C. 90, 159 S.E. 446; Hobbs v. Illinois Cent. R. Co., 182 Iowa 316, 165 N.W. 912.
- Klopfer v. North Carolina, 386 US 213 at 214, 87 S. Ct. 988, 18 L. Ed. 2d 1, Sup. Ct., 1967.
- Swick v. Liautaud, 662 NE 2d 1238, 169 Ill. 2d 504, Ill Sup. Ct., 1996.
- Klopfer at 215 et seq..
- Wynne v. Rosen, 464 NE 2d 1348, Mass Sup. J. Ct., 1984.
- See FRCP Rule 41, for example.
- Greenblum, What Happens to a Prosecution Deferred-Judicial Oversight of Corporate Deferred Prosecution Agreements Archived 19 January 2012 at the Wayback Machine., 105 Colum. L. Rev. 1863 at 1868, 2005.
- Mckenna, Marian C., Franklin Roosevelt and the great constitutional war, Fordham University Press, 2002, pp. 8–9. ISBN 0-8232-2154-7
- Boyle, Kevin, Arc of Justice: A Saga of Race, Civil Rights and Murder in the Jazz Age, Henry Holt & Company, New York: 2004. (National Book Award Winner). ISBN 0-8050-7933-5; ISBN 978-0-8050-7933-3.
- Devlin, Patrick, Easing the Passing: the trial of Dr John Bodkin Adams, London : The Bodley Head, 1985, pp. 181. ISBN 0-370-30627-9
- Cullen, Pamela V., A Stranger in Blood: The Case Files on Dr John Bodkin Adams, London : Elliott & Thompson, 2006. ISBN 1-904027-19-9
- Shifrel, Scott (2011-06-17). "Federal judge drops embassy blast charges against Osama bin Laden". NY Daily News. Retrieved 2011-06-19.
- U.S. Federal Rules of Criminal Procedure, Rule 48.