Motion for Nolle Prosequi (Government Dismissal of Charges)

When the motion for nolle prosequi is used

Timing: any time before trial, and in some cases during trial. Under Rule 48(a), the government may not dismiss during trial without the defendant's consent. Dispositive motions ask the court to decide all or part of a case without a full trial. They usually follow discovery.

What the rule requires

• The prosecutor, not the defendant, files it. A defendant who wants charges dropped files a motion to dismiss instead.
• In federal court, the government needs leave of court. The judge reviews the request, but courts usually give the prosecutor's decision great weight.
• A nolle prosequi ends the current charges. It is not an acquittal, so the government can often refile within the statute of limitations unless the court dismisses with prejudice.
• Rule 48(b) is separate. It lets the court dismiss on its own when there is unnecessary delay in presenting a charge to a grand jury, filing an information or bringing a defendant to trial.
• State rules differ. Check the state's criminal rules, for example Maryland Rule 4-247, for the local procedure and its effect.

In practice, read each requirement closely. Then check whether your court adds anything of its own. For example, many courts set page limits, formatting rules or a duty to confer with the other side first.

You can read the full text of Fed. R. Crim. P. 48(a) online. Also, the federal judiciary publishes the current rules and recent amendments.

The motion for nolle prosequi in state court

State courts follow their own rules of procedure. Many states model their rules on the federal rules, so you will often find a similar motion for nolle prosequi procedure. However, the name, the deadline and the required form can differ. Therefore, look up the matching rule in your state’s rules of civil procedure. Also read your court’s local rules. Our state procedures guide links to each state’s official rules.

Key terms

In addition, these terms come up often with this procedure:

• Nolle prosequi: a prosecutor's formal decision to drop criminal charges.

Related procedures

Similarly, these procedures often come up alongside it:

• Request for Dismissal: a filing that ends all or part of a case at the plaintiff's request. In federal court it takes the form of a notice of dismissal, a stipulation of dismissal or a motion for a dismissal order; some state courts, such as California, use a court form titled "Request for Dismissal."
• Voluntary Dismissal: the ways a plaintiff can end its own case.
• Motions: Form and Requirements: the general rules every written motion must follow.

Before you rely on this page

Always read the current rule yourself instead of relying on a summary. Next, check the local rules and the judge’s standing orders, since they often add steps. Then look for recent decisions from your court that apply the rule. Finally, talk to a licensed attorney about your situation. You can find one in our directory.

State court procedure for this filing

The federal rule above applies in federal court. In state court, the same filing is governed by that state's own rules of civil procedure, statutes and local court rules. Many states model their rules on the Federal Rules of Civil Procedure, so the requirements are often similar, but names, numbers, deadlines and forms can differ. Always use the version that applies to the court where your case is filed.

Find the rule in your state

In your state's rules, look for the rule on motion for nolle prosequi (government dismissal of charges). In states that number their rules like the federal rules, it is often the same rule number as the federal rule.