Nolle prosequi, abbreviated nol or nolle pros, is legal Latin meaning "to be unwilling to pursue". In Commonwealth and US common law, it is used for prosecutors' declarations that they are voluntarily ending a criminal case before trial or before a verdict is rendered; it is a kind of motion to dismiss and contrasts with an involuntary dismissal.
Application in United States 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 retraxit or 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 that prosecutors 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 vital witnesses have become unavailable or uncooperative, 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.
The entry of a nolle prosequi is not an acquittal. Since the principle of double jeopardy therefore does not apply, the defendant may later be indicted on the same charge again.
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.
Application and legal effect in English and Welsh law
The power of entering a nolle prosequi is now used rarely, and is mostly restricted to cases where a defendant is permanently physically or mentally unfit to appear in court, or when an ordinary member of the public has brought private criminal proceedings which the Attorney General considers it is not in the public interest to continue. In the past, it was also used to protect a person to who was given immunity from prosecution. A nolle prosequi acts as an indefinite adjournment to the case, not an acquittal. While terminating the proceedings, it does not bar the defendant from being indicted again, but there is no known case of this happening in the century before 1957, or since.
Decision-maker and timing
Only the Attorney General can enter a nolle prosequi, acting in the public interest. The Attorney General is not answerable to the courts but to Parliament for how this the power is exercised. It can be entered at any stage after an indictment has been signed and before a Crown Court judgment is made. A nolle prosequi will usually be requested from the Attorney General by the defence but an application can also be made by the prosecution.
Nolle prosequi in other jurisdictions
The power of entering a nolle prosequi in the Republic of Ireland rests with the Director of Public Prosecutions, and its use is normally in cases where there are problems with the evidence that would make it difficult for the case to proceed. The Director may in theory pursue the prosecution later, but this rarely, if ever, happens. As the accused enjoys the presumption of innocence that all accused people enjoy until they are convicted, an entry of a nolle prosequi is equated with innocence. This power is quite widely used: in 2013 in 376 cases of rape, about one-quarter of the total of indictments for this offence were ended by an entry of a nolle prosequi.
Although there are differences in practice between the different states and territories, the Attorney-General, Solicitor-General or designated Law Officer in each may enter a nolle prosequi, with the effects that the indictment is halted and the accused person is discharged. Although the general practice is not to revive the proceedings, this may be done if important new evidence comes to light or where it is in the interests of justice to do so. It is not uncommon for a nolle prosequi to be entered because the evidence available to the prosecution is often not reviewed by senior prosecuting counsel, and found to be inadequate a few days before the trial date, or a witness refuses to testify.
- 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 murder of an elderly widow, Edith Alice Morrell and indicted, but not tried, 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 Devlin, in his post-trial book commented: "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.
- In 2019, subsequent to the Boston straight pride parade, a justice of the Massachusetts Supreme Judicial Court held that a notice of nolle prosequi could not be denied by a judge. Notice of nolle prosequi was found to be within the prosecutor's right to exercise judgment and manage limited resources. "[The trial court judge's] effort to do so violated the Commonwealth's constitutional rights".
- 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
- Involuntary dismissal
- "nolle prosequi, n.", Oxford English Dictionary, Oxford: Oxford University Press.
- "nolle prosequi", Merriam-Webster Dictioanry, Springfield: Merriam-Webster.
- "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.
- Lord MacDermot (1957), The Protection from Power under English Law
- Payne, Jason (2007). ‘Criminal trial delays in Australia’, Canberra, Australian Institute of Criminology Research and Policy Paper 74
- 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
- Shifrel, Scott (17 June 2011). "Federal judge drops embassy blast charges against Osama bin Laden". NY Daily News. Retrieved 19 June 2011.
- U.S. Federal Rules of Criminal Procedure, Rule 48.