What Is Nolle Prosequi?

In most cases, there are only two ways to end a criminal case once you’ve been charged and arraigned. You can accept a plea deal, or the case can go to trial. A third possibility is that a defendant learns that their case is being “nol prossed.” In simple terms, you’re being released.

Nolle prosequi is a legal term meaning “we will no longer prosecute” or “we do not wish to prosecute.” The full meaning is a bit more complicated. If your case is nol prossed, that doesn’t mean you were found not guilty or acquitted. The charges against you have been dropped, but the state can refile them before a certain deadline. This article explains what a nolle prosequi means for your case, why a prosecutor might file one, and what your options are for clearing your record.

Why Would a Prosecutor Drop Charges with a Nolle Prosequi?

A nolle prosequi order means that the prosecuting attorney voluntarily drops or dismisses the charges against a defendant, usually before trial. They can do this for a number of reasons, such as:

• Evidence has been lost or is missing: The chain of custody may be compromised, making it difficult to introduce the evidence at trial
• Tests have made the evidence unreliable or inaccurate: For instance, DNA found at the scene is not the defendant’s
• Issues with witnesses: They may have moved, refuse to cooperate, or are otherwise unavailable
• Other arrangements: The defendant has accepted a plea bargain or completed a diversion program

A nolle prosse order can be issued if a defendant is being tried on both state and federal charges for the same offense. A state prosecutor may issue a nolle prosse if they are satisfied that the federal charge is likely to result in a conviction.

What a Nolle Prosequi Is Not

A nolle pross isn’t an acquittal. Since a nolle pross order is made by the district attorney or state’s attorney, it’s not a final court order or verdict. Instead, it ends the case before it reaches the court.

A nolle pross does not:

• Affect double jeopardy: Double jeopardy only attaches after a jury is sworn. The prosecutor can bring the same charges again without violating the defendant’s civil rights.
• Affect the “speedy trial” clock: If the defendant has invoked their Sixth Amendment right to a speedy trial, a nolle pross order ends the case and stops the clock. If the case is refiled later, the speedy trial clock restarts for the new case.
• Prevent future refilings on the case: A nolle pross is a “dismissal without prejudice.” This means the defendant can be re-indicted on the same charges and facts if the prosecutor chooses.

There are some limits on what a prosecutor can do after they file a nolle pross, but not as many as if the case goes to trial. If they choose to refile the charges, they must do so within the statute of limitations on the original offense.

Statutes of limitation on criminal offenses are usually much longer than for civil cases. Serious felonies such as murder, rape, or sex offenses against minors may have no statutes of limitation. Misdemeanors may have filing limitations of a year or two.

Impact on the Defendant

A nolle prosequi has both good and bad outcomes for the defendant. Depending on why the case was dismissed, you may not need to worry about it being refiled. For instance, if you completed a diversion program, your nolle pross is now contingent on your completing probation. If it was due to a witness skipping town, a prosecutor is more likely to refile the charges.

The case is dismissed, so any pretrial release conditions, bond restrictions, and warrants related to the case are also terminated. However, the nolle pross isn’t the same as receiving a not-guilty verdict. The criminal charges may be dropped, but you’ll still have a criminal record. Your arrest record may still appear on a criminal background check.

When a Nolle Prosequi Is Abused

Courts have held that a nolle prosequi can’t be used as a trick to avoid a speedy trial deadline. In most states, prosecutors must bring a criminal case within a certain timeframe (usually 180 days) unless the defendant waives the speedy trial right.

If the prosecution files a nolle prosequi before the deadline and then refiles charges almost immediately, it may be grounds for dismissal as a Sixth Amendment violation. A defense attorney must object to any request for continuance by the prosecution and can’t have used any delay to advance their own case.

The nolle prosequi also can’t be used to hold a case in limbo. In Klopfer v. North Carolina, the U.S. Supreme Court held that leaving a case without a clear end and justification violated a defendant’s right to a speedy trial.

After several continuances, the prosecution in Klopfer requested a nolle prosequi “with leave,” which the court granted. Almost two years had passed since the original indictment. The Supreme Court ruled that this violated the defendant’s right to a speedy trial and that this right did not begin once the trial began.

Expungement

A criminal background check will show that any charges in your case were dropped or dismissed. It’s neither a guilty conviction nor a not-guilty verdict. A potential employer or other checker will see the charges and that the prosecution chose not to move forward.

You can ask that a nolle pross be removed or expunged from your record. In some states, you’ll need an attorney to help you with this. Expungement involves sending documentation to the state criminal records office and asking them to edit (“redact”) the charge from your file. A deep records search, like those done by the FBI, may still see the expungement.

Contact a Criminal Defense Attorney for Help

If your case has reached the point of being nolle prossed, you may already have a defense attorney. If the process led to your case being dismissed, you may be considering expungement. A criminal defense attorney can ensure you follow the right procedure to have the charges removed from your record.

If your case has been reactivated after a nolle pross, having a criminal defense attorney is a necessity. This usually means the prosecution has new evidence or has located new witnesses in the original case. An attorney will advise you on the next steps and ensure the prosecutor doesn’t violate your rights.