The language of the law. Part Latin, part Anglo-Saxon, all confusing.
So The Legal Genealogist was sitting at a microfilm reader at the Family History Library in Salt Lake City when the question came up. On the morning of Wednesday, 26 March 1852, the minutes of the District Court of Wharton County, Texas, report court action with respect to the case of State v. Joseph Newman. The entry reads: “Indictment for Gaming Nolle Prosequi.”1
Yeah, sure, right. And what the heck does that mean?
This one is pure Latin, and it’s the functional equivalent of that wonderful card we all used to like so much from the Community Chest when we played Monopoly. To all extents and purposes, in this context, it’s a Get Out of Jail Free card.
The term is defined by Black as:
A formal entry upon the record, by the plaintiff in a civil suit or the prosecuting officer in a criminal action, by which he declares that he “will no further prosecute” the case, either as to some of the counts, or some of the defendants, or altogether. A nolle prosequi is in the nature of an acknowledgment or undertaking by the plaintiff in an action to forbear to proceed any further either in the action altogether, or as to some part of it, or as to some of the defendants…2
Bouvier defines it a bit more simply, as “(a)n entry made on the record, by which the prosecutor or plaintiff declares that he will proceed no further.”3
One thing to keep in mind is that the term applied to both civil and criminal cases, so you might run into it in civil court minutes or criminal court minutes.
In a civil case, until modern procedures replaced the common law concepts with more specific rules:
• It was only an agreement not to continue this suit against this defendant or these defendants now. If Plaintiff sued Defendants A, B and C for damages, Plaintiff could enter a nolle prosequi against B and C and the suit would proceed only against A.4
• It could be entered on specific counts of a suit. If Plaintiff sued for, say, breach of an oral contract and breach of a written contract, Plaintiff could enter a nolle prosequi for the oral contract and go to trial only on the written contract.5
• It didn’t bar a later suit against the same person for the same claim that was included in the nolle prosequi. If Plaintiff wanted to, he could go back and sue B and C again later, and add in the oral contract claim on top of the written contract claim. The only time Plaintiff couldn’t sue again was if he collected his full damages from A.6
In a criminal case, the prosecutor generally had the authority to decline to prosecute any case further, and so get a nolle prosequi entered, before or after a grand jury indicted the defendant. But there were some additional twists:
• In some states, once an indictment was returned, court permission was required before a case could be discontinued under a nolle prosequi. That was certainly the case in Pennsylvania for most offenses,7 in Alabama,8 and in Arkansas,9 just to name three examples.
• In all states, the nolle prosequi didn’t have the same legal effect as an acquittal — a defendant could be reindicted for the same charge.10
• But all bets were off if ever a jury was sworn in to hear the evidence on the case. That’s because of the constitutional protection against double jeopardy set out in the Fifth Amendment to the U.S. Constitution and in most state constitutions as well. That clause (and similar state language) provides that no-one can “be subject for the same offence to be twice put in jeopardy of life or limb” and the event that triggers jeopardy for constitutional purposes is the jury being sworn in to hear the case.11 So once the jury was sworn in, the prosecutor no longer had the right to just walk away from that trial and then proceed against the defendant for the same crime later.12
In reality, of course, most prosecutors didn’t walk away from good cases in the early days any more than they do now. If they had a solid, triable case, they went ahead and tried the defendant and — more likely than not — got a conviction. So the entry of a nolle prosequi usually meant the case wasn’t all that good to begin with, or it was old and witnesses were gone, or nobody cared much about the crime any more anyway, or some combination.
All of which, for the defendant, meant he Got Out of Jail Free.
- Wharton County, Texas, District Court Minute A: 85, 26 Mar 1852; Court Clerk’s Office, Wharton; Family History Library (FHL) microfilm 1012537, Salt Lake City. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 818, “nolle prosequi.” ↩
- John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, rev. 6th ed. (1856); HTML reprint, The Constitution Society (http://www.constitution.org/bouv/bouvier.htm : accessed 16 Oct 2012), “nolle prosequi.” ↩
- Ibid., paragraph 3. ↩
- Ibid., paragraph 5. ↩
- Ibid., paragraph 4. ↩
- Ibid., paragraph 2. ↩
- See Drinkard v. State, 20 Ala. 9, 13-14 (1852) (“The second section of the eleventh chapter of the Penal Code provides that it shall not be lawful for the attorney general, solicitor, or other prosecuting officer to enter a nolle prosequi on any indictment, or in any other way to discontinue or abandon the same, without the leave of the court having Jurisdiction to try the offence being first had and entered on its minutes”). ↩
- See Baker v. State, 4 Ark. 56, 60 (1842) (“In this State the attorney is prohibited from entering a nolle prosequi on any indictment, or in any way to discontinue or abandon the same, ‘without the leave of the court’”). ↩
- Bouvier, A Law Dictionary, “nolle prosequi,” paragraph 4. ↩
- See e.g. Powell v. State, 17 Tex. App. 345, 348-351 (Tex. Crim. App. 1884). ↩
- Ibid. at 350 (“when (the jurors) have been impaneled and sworn… defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will”). ↩