Understanding “Nolle Prosequi”

Nolle Prosequi is a Latin term that means to decline to prosecute. In criminal law, nolle prosequi refers to a prosecutorial decision to no longer prosecute or to decline the prosecution of an active criminal case.

Nolle prosequi is a declaration made by a prosecutor in a criminal case either before or during the trial, resulting in the prosecutor declining to further pursue the case against the defendant.

Generally, courts will not challenge applications for nolle prosequi. The judge will usually sign a dismissal order prepared by the prosecution or make a docket entry indicating the disposition of the case to be nolle prosequi after a declaration or motion by the prosecution.

The declaration may be made because of any of the following reasons:

• The criminal charges cannot be proved because key witnesses have become unavailable or uncooperative;
• The evidence is insufficient to carry the burden of proof;
• The evidence is flawed or case theory in light of the claims that are brought by the Defendant (generally via an innocence proffer);
• The prosecutor becomes doubtful that the defendant is guilty, the defendant’s innocence is proved;
• or the defendant has died.

It is commonly used when federal criminal charges are 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 amenable to the sentence on the federal charge and has no need to go any further with the original case.

In Federal Cases, Rule 48 requires the Court’s Permission:

Rule 48. Dismissal

(a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.