Nolle prosequi

Nolle prosequi (/ˌnɒli ˈprɒsəkwaɪ/;^[1] Classical Latin: [ˈnolːe ˈproːsekwiː]) is legal term of art and a Latin legal phrase meaning "be unwilling to pursue",^[2] a phrase amounting to "do not prosecute". It is a phrase used in many common law criminal prosecution contexts to describe a prosecutor's decision to voluntarily discontinue criminal charges either before trial or before a verdict is rendered.^[3] It contrasts with an involuntary dismissal.

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, is used by a plaintiff to voluntarily drop 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.

Decision maker

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 U.S., 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 U.S. it has been held improper for a court to enter an order of nolle prosequi on its own without a motion by the prosecutor,^[4] 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.^[5] 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 dismissing a case via filing a nolle prosequi.^[6]

Reason

The declaration may be made because the charges cannot be proved due to evidence too weak to carry the burden of proof, because the evidence is fatally flawed in light of the claims brought,^[7] or may be made if the prosecutor becomes doubtful the accused is guilty or the defendant's innocence is proved, or if the defendant has died. It has also been used when a Federal criminal charge is brought up against a defendant and the prosecutor on a State charge for the same offense no longer wishes to pursue the case. Usually this 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.

Timing

In criminal cases, nolle prosequi declarations are generally made 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 trial begins or before a judgement on the merits is rendered, depending on the rules of the jurisdiction.

Legal effect

The entry of a nolle prosequi is not an acquittal, and the principle of double jeopardy therefore does not apply. The defendant may later be re-indicted on the same charge.^{[8][9][10][11]}

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 is used or a declaration of nolle prosequi, federal and state rules of civil procedure generally govern when, how and for what reasons claims may be voluntarily dismissed, applying different rules to different types of claims, and to whether a court may give leave to dismiss a matter with or without prejudice.^[12]

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, but also 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.^[13]

Notable cases

• 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!^[14]
• 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.^[15]
• In 1957, John Bodkin Adams, who worked in Eastbourne, England, was tried for the murders of two elderly widows, Edith Alice Morrell and 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. Not only was there seemingly little reason to enter it (Adams was not suffering from ill health), the Hullett charge was deemed to be the stronger of the two cases. Lord Justice Patrick Devlin, the presiding judge, in his post-trial book termed this "an abuse of power".^[16] Detective Superintendent Herbert Hannam and his assistant Charles Hewett of Scotland Yard, suspected political interference,^[17] and Home Office pathologist Francis Camps suspected Adams of killing 163 patients.^[17]
• 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.^[18]

See also

• 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

References

1. "Nolle prosequi". Oxford English Dictionary (3rd ed.). Oxford University Press. September 2005. (Subscription or UK public library membership required.)
2. "Nolle prosequi". reference.com. Accessed 2012-03-02.
3. A nolle prosequi can be entered at any time after the indictment or information has been signed and before verdict: R v Dunn (supra); R v Colling (1847) 2 Cox CC 184; R v Sneesby (1951) St R Qd 26; R v Economou (1989) 51 SASR 421; R v Heald (1979) Tas R 185 source: R v Michael Charles Baenisch SASC 5679 (28 June 1996) para. 12.
4. 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).
5. 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.
6. FRCRP 48 notes, cornell.edu. Retrieved 2011-11-8.
7. 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.
8. Klopfer v. North Carolina, 386 US 213 at 214, 87 S. Ct. 988, 18 L. Ed. 2d 1, Sup. Ct., 1967.
9. Swick v. Liautaud, 662 NE 2d 1238, 169 Ill. 2d 504, Ill Sup. Ct., 1996.
10. Klopfer at 215 et seq..
11. Wynne v. Rosen, 464 NE 2d 1348, Mass Sup. J. Ct., 1984.
12. See FRCP Rule 41, for example.
13. Greenblum, What Happens to a Prosecution Deferred-Judicial Oversight of Corporate Deferred Prosecution Agreements, 105 Colum. L. Rev. 1863 at 1868, 2005.
14. Mckenna, Marian C., Franklin Roosevelt and the great constitutional war, Fordham University Press, 2002, pp. 8–9. ISBN 0-8232-2154-7
15. 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.
16. Devlin, Patrick, Easing the Passing: the trial of Dr John Bodkin Adams, London : The Bodley Head, 1985. ISBN 0-370-30627-9
17. Cullen, Pamela V., A Stranger in Blood: The Case Files on Dr John Bodkin Adams, London : Elliott & Thompson, 2006. ISBN 1-904027-19-9
18. Shifrel, Scott (2011-06-17). "Federal judge drops embassy blast charges against Osama bin Laden". NY Daily News. Retrieved 2011-06-19.

External resources

• U.S. Federal Rules of Criminal Procedure, Rule 48.