Nolle Prosequi
Nolle prosequi — Latin for “to be unwilling to prosecute” — is the formal declaration by a prosecutor that they are dropping criminal charges. It is among the most consequential acts in the criminal justice system and one of the most misunderstood by defendants who receive it.
What It Is
Prosecutors hold broad discretion over whether to pursue criminal charges. When a prosecutor decides to abandon a case — whether because evidence is insufficient, a witness is unavailable, a plea agreement with another defendant has resolved the matter, or the case is no longer in the public interest — they file a nolle prosequi (often abbreviated nol-pros or nol. pros.).
In federal court and most state courts, the prosecutor files a notice of dismissal. In some jurisdictions, the court must approve the dismissal; in others, the prosecutor may dismiss unilaterally before jeopardy attaches (typically before a jury is sworn). After jeopardy has attached, dismissal requires court approval and raises double jeopardy considerations.
A nolle prosequi is generally without prejudice, meaning the prosecutor retains the option to refile the charges if circumstances change — new evidence emerges, a witness becomes available, or a plea agreement with a co-defendant produces information that allows the case to proceed. This is the critical detail many defendants miss. A nolle pros is not an acquittal.
In some jurisdictions, there are time limits on refiling. Statutes of limitations continue to run even after a nolle prosequi. If the prosecutor waits too long to refile, the case may be permanently foreclosed.
Etymology
The phrase is classical Latin — the subjunctive form of nolle (to be unwilling) combined with prosequi (to pursue or prosecute). It appears in English legal records from at least the seventeenth century and reflects the era when legal proceedings were conducted and recorded in Latin. The phrase was preserved as a term of art long after Latin was abandoned in ordinary legal practice.
A Concrete Example
Prosecutors charge a defendant with armed robbery based on eyewitness identification. Before trial, the eyewitness recants. Without the identification testimony, the remaining evidence — circumstantial and contested — is insufficient to meet the burden of proof. The prosecutor files a nolle prosequi. The case is dismissed without prejudice. Six months later, surveillance footage from an adjacent business is discovered and authenticated. The prosecutor refiles. The original nolle prosequi did not bar the refiling because the statute of limitations had not yet run and jeopardy had never attached.
Common Misconception
Defendants who receive a nolle prosequi frequently believe the charges have been permanently dropped — that the matter is closed. This is not necessarily true. A dismissal without prejudice is not an exoneration and is not equivalent to an acquittal. The case can be reopened. The arrest record typically remains. In many jurisdictions, a nolle prosequi requires a separate expungement proceeding to remove from the criminal record. The charges ending is not the same as the case being over.