Resolution of Criminal Cases: Part III—Nolle Prosequi and Diversionary Programs

Nolle prosequi refers to a prosecutor’s decision to abandon or drop a criminal case after charges have already been filed. When the police charge someone with a crime, they initiate a criminal case, but it is the prosecutor who later decides whether to pursue or discontinue those charges. From that moment, the most important consideration for the person charged is how the case will end. Generally, it will conclude in one of four ways: the Commonwealth could drop the case, or the defendant may enter a diversionary program, a plea agreement, or stand trial.

Three Part Criminal Case News Series

This series of news blogs discusses the various types of resolutions that can occur in a criminal case. In Part I, we covered trials. In Part II, we covered various forms of acceptance of criminal responsibility, or plea arrangements. In Part III (this blog), we will cover the Commonwealth’s voluntary discontinuance of a case, which is formally termed nolle prosequi (or nolle pros, for short) and diversionary programs, which may provide a route to dismissal.

What Does Nolle Prosequi Mean?

Nolle Prosequi is when The Commonwealth—and its representative, the prosecutor—may voluntarily elect to dismiss charges against a defendant. Its exercise of that option, however, is exceedingly rare. Many more serious charges require the District Attorney’s permission to bring the charges in the first place, and it is unlikely that a prosecutor would reverse him- or herself. Even in less serious cases, prosecutors are generally reluctant to outright dismiss a case absent some intervening cause or the defendant’s participation in a diversionary program.

Effectuating the Dismissal of Charges

To effectuate the dismissal of charges, the prosecutor must make a motion in open court and a judge of the Court of Common Pleas must approve the dismissal. See Pa.R.Crim.P. 585(A); see Pa.R.Crim.P. 561 (procedure for dismissing charges prior to filing of the criminal information). The judge may inquire about the reasons for the dismissal, agreements between the parties, or other factors relevant to the dismissal.

Recently, the public observed a court’s role in dismissal play out in the Southern District of New York when the United States Department of Justice ordered its prosecutors to withdraw charges against New York City Mayor Eric Adams (LINK TO: https://apnews.com/article/new-york-mayor-eric-adams-charges-ff3730a2e870cd219e8fead8899118b1). Dismissal proceedings are not usually that dramatic, though.

When Do Prosecutors Drop Charges Per Nolle Prosequi?

In the purest form of a nolle prosequi, the prosecutor dismisses the charges when he or she believes it is appropriate to do so. The decision to drop charges under these circumstances is the prosecutor’s alone. Usually, the trial prosecutor needs permission from a senior member of the District Attorney’s office or the elected district attorney him- or herself (depending on the county, office policy, type of charges, and other factors).

In addition to the prosecutor’s hesitancy to withdraw charges once they are filed, there is little a criminal defendant can do to make that happen. Personally, I have seen prosecutors discontinue cases for a number of reasons—evidence became unavailable, new and irrefutable evidence surfaced, etc. The bottom line of the overwhelming majority of these cases is that the defendant could do little to force the prosecutor to take that action or create circumstances that would lead the prosecutor to drop the case.

Diversionary Programs Can Be an Avenue to Dismissal & Nolle Prosequi

There are some limited options to assure dismissal, however—a defendant can successfully complete a diversionary program. Diversionary programs can (but don’t necessarily have to) include dismissal at the program’s conclusion. A diversionary program is an alternative procedure that removes a criminal case from the usual track. It may be formalized or informal, but they universally involve defendants waiving at least some rights in exchange for their participation in the program.

Lancaster County, Pennsylvania Diversionary Programs

In Lancaster County, Pennsylvania, there are several diversionary programs available to those facing criminal charges. The Accelerated Rehabilitative Disposition program, or ARD, is usually (but not always) used for those charged with driving under the influence. Treatment Courts, which prosecutors may allow to function as diversionary programs, exist for veterans, those with serious mental health issues, and those who are dependent on drugs or alcohol. Other diversionary programs exist for those facing low-level drug offenses or prosecutions for bad checks.

Speedy Trial Rights

When a defendant applies for these programs, he or she must waive at least some rights relative to their criminal cases. At a minimum, they must waive their speedy trial rights for the time the District Attorney’s Office is evaluating their application. Each program has different requirements beyond that: some require a guilty plea for admission, some require longer waivers of speedy trial rights, and some require other things.

These programs all vary in scope and duration, but generally, a defendant must participate in treatment, restitution, supervision, education, and/or rehabilitation to successfully complete the programs. The carrot at the end is dismissal of charges and possible records expungement.

Get Legal Help Today

If you or your loved one are facing criminal charges, they need an experienced and diligent lawyer to navigate the slew of options they have for resolution of their case. None of these resolutions are universally good or bad. Which resolution is best is closely tied to the facts and evidence of the particular case, the client’s goals and risk tolerance, and the other available options. If you want an experienced lawyer in your corner, call Dan Bardo at Pyfer Reese.

Disclaimer: This blog and all blogs on the Pyfer Reese website are meant to provide general information only and are in no way legal advice or guidance. To obtain legal representation or guidance on your particular case reach out to one of our experienced attorneys today.