How to File a Motion for Nolle Prosequi
Identify the reason for the motion., Format the motion., Insert the caption., Explain why you are moving for nolle prosequi., Sign the motion., Attach an order., Talk with the defendant’s attorney., File the motion., Attend the hearing.
Step-by-Step Guide
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Step 1: Identify the reason for the motion.
Before filing the motion, you should identify exactly why you want to stop the prosecution.
The judge will want to know, and you will have to include the reason in your motion.
Generally, prosecutors file this motion for the following reasons:
You have re-evaluated the evidence.
For example, you might not think the evidence is strong enough to get a conviction.
New evidence has emerged which casts doubt on the defendant’s guilt.
For example, a new witness might have stepped forward.
A key witness fails to cooperate.
Often, in domestic violence cases for example, you can’t go forward unless the victim agrees to testify.
You choose to give the defendant a second chance. -
Step 2: Format the motion.
You should set up your motion just as you would any other motion you submit to the court.
Make sure to follow the judge’s rules.
As a prosecutor, you should be familiar with the judge’s local rules; however, if you are appearing before a judge for the first time, then ask someone else in your office if the judge has specific formatting requirements.
You might even have a form template in your office to use.
For example, the state of Michigan has a template online., You can get the caption off the indictment or information that you filed.
The caption information includes the name of the court, the names of the parties (the state and the defendant), and the case number.
It may also contain the judge’s name.
You can also title the motion “Motion for Nolle Prosequi” in all caps, underlined., You have to give the court some reason why you want to stop the prosecution.
Although courts will generally defer to your judgment, they will refuse to grant the motion if they think you are filing the motion for a vindictive or unfair tactical reason.Accordingly, you should give a good-faith reason why you want to terminate the prosecution.
Sample language could read: “Comes now the State of Arkansas, by and through counsel John Smith, and for its Motion states: (1) After re-evaluating the evidence, the State declines to pursue the above-styled matter.
Wherefore, the State of Arkansas respectfully requests the Court to grant this Motion for Nolle Prosequi.”, Include a line for your signature.
If you are a deputy prosecutor or district attorney, then you may need to include the name of the district or prosecuting attorney in addition to your own name.
Include your business address and phone number.Then sign the motion. , Depending on the court, you may need to submit a proposed order along with the motion.
If you are using a printed, “fill in the blank” form, then the order is probably already attached for the judge to sign.To draft your own order, open up a new page and insert the caption information at the top.
Title the order “Order Granting State’s Motion for Nolle Prosequi” or something similar.
In the body of the motion, you can write, “Hearing this on the State’s Motion for Nolle Prosequi, IT IS ORDERED that the Motion is GRANTED and the case is nolle prossed without prejudice.” Then insert a line for the date and a line for the judge’s signature. , It is common to talk with the defense attorney before moving to dismiss the charges; however, you should always follow the policy in your office.
By letting defense counsel know ahead of time, the defendant can discuss whether or not they want to oppose your motion.
You should also discuss how defense counsel wants to receive a copy of your motion.
For example, the Federal Rules of Criminal Procedure allow you to serve notice in any manner allowed in civil court, such as through the mail or sending a copy electronically., You should file the motion with the court clerk, just as you would file any other motion in the case.Be sure to keep several copies for your records.
The clerk can stamp your copies with the filing date.
Remember to send defense counsel a copy of the motion.
Depending on the judge, you may have to give the judge a courtesy copy when you file. , At the hearing, you should be prepared to discuss why you want to stop the prosecution.
The judge will defer to your authority but will want to make sure you have a “good faith” reason why you are requesting nolle prosequi.Remember to use good court etiquette when appearing at the hearing.
Stand when the judge enters the courtroom and announce your name when your matter is called, especially if you don’t appear regularly before the judge.
If the judge grants the motion, then you may be responsible for distributing copies of the signed order to the defendant, as well as to any other relevant offices. -
Step 3: Insert the caption.
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Step 4: Explain why you are moving for nolle prosequi.
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Step 5: Sign the motion.
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Step 6: Attach an order.
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Step 7: Talk with the defendant’s attorney.
-
Step 8: File the motion.
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Step 9: Attend the hearing.
Detailed Guide
Before filing the motion, you should identify exactly why you want to stop the prosecution.
The judge will want to know, and you will have to include the reason in your motion.
Generally, prosecutors file this motion for the following reasons:
You have re-evaluated the evidence.
For example, you might not think the evidence is strong enough to get a conviction.
New evidence has emerged which casts doubt on the defendant’s guilt.
For example, a new witness might have stepped forward.
A key witness fails to cooperate.
Often, in domestic violence cases for example, you can’t go forward unless the victim agrees to testify.
You choose to give the defendant a second chance.
You should set up your motion just as you would any other motion you submit to the court.
Make sure to follow the judge’s rules.
As a prosecutor, you should be familiar with the judge’s local rules; however, if you are appearing before a judge for the first time, then ask someone else in your office if the judge has specific formatting requirements.
You might even have a form template in your office to use.
For example, the state of Michigan has a template online., You can get the caption off the indictment or information that you filed.
The caption information includes the name of the court, the names of the parties (the state and the defendant), and the case number.
It may also contain the judge’s name.
You can also title the motion “Motion for Nolle Prosequi” in all caps, underlined., You have to give the court some reason why you want to stop the prosecution.
Although courts will generally defer to your judgment, they will refuse to grant the motion if they think you are filing the motion for a vindictive or unfair tactical reason.Accordingly, you should give a good-faith reason why you want to terminate the prosecution.
Sample language could read: “Comes now the State of Arkansas, by and through counsel John Smith, and for its Motion states: (1) After re-evaluating the evidence, the State declines to pursue the above-styled matter.
Wherefore, the State of Arkansas respectfully requests the Court to grant this Motion for Nolle Prosequi.”, Include a line for your signature.
If you are a deputy prosecutor or district attorney, then you may need to include the name of the district or prosecuting attorney in addition to your own name.
Include your business address and phone number.Then sign the motion. , Depending on the court, you may need to submit a proposed order along with the motion.
If you are using a printed, “fill in the blank” form, then the order is probably already attached for the judge to sign.To draft your own order, open up a new page and insert the caption information at the top.
Title the order “Order Granting State’s Motion for Nolle Prosequi” or something similar.
In the body of the motion, you can write, “Hearing this on the State’s Motion for Nolle Prosequi, IT IS ORDERED that the Motion is GRANTED and the case is nolle prossed without prejudice.” Then insert a line for the date and a line for the judge’s signature. , It is common to talk with the defense attorney before moving to dismiss the charges; however, you should always follow the policy in your office.
By letting defense counsel know ahead of time, the defendant can discuss whether or not they want to oppose your motion.
You should also discuss how defense counsel wants to receive a copy of your motion.
For example, the Federal Rules of Criminal Procedure allow you to serve notice in any manner allowed in civil court, such as through the mail or sending a copy electronically., You should file the motion with the court clerk, just as you would file any other motion in the case.Be sure to keep several copies for your records.
The clerk can stamp your copies with the filing date.
Remember to send defense counsel a copy of the motion.
Depending on the judge, you may have to give the judge a courtesy copy when you file. , At the hearing, you should be prepared to discuss why you want to stop the prosecution.
The judge will defer to your authority but will want to make sure you have a “good faith” reason why you are requesting nolle prosequi.Remember to use good court etiquette when appearing at the hearing.
Stand when the judge enters the courtroom and announce your name when your matter is called, especially if you don’t appear regularly before the judge.
If the judge grants the motion, then you may be responsible for distributing copies of the signed order to the defendant, as well as to any other relevant offices.
About the Author
Susan Kelly
Dedicated to helping readers learn new skills in organization and beyond.
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