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  • Writer's pictureMichael Thaler, Esq

What Does It Mean To Have A Case Dismissed “Without Prejudice” Or “With Prejudice”?

Normally, when a case is dismissed at a trial date or pursuant to a motion to dismiss, it is done so “without prejudice”. If this were to happen, then the case is usually over. However, the District Attorney’s Office can still seek to reopen the case within the applicable statute of limitations by one of four methods: 1) filing a motion to reconsider before the judge that dismissed the case; 2) filing a new application for complaint in the same court; 3) appealing from the dismissal of the original complaint; or 4) seeking an indictment from the grand jury. District Court Standards of Judicial Practice, The Complaint Procedure (Oct. 2008). The District Attorney’s Office rarely tries to reopen a case that is dismissed without prejudice. Some occasional circumstances where the District Attorney’s Office might try to do so are if a case was dismissed because a witness was unavailable and a motion to continue on the trial date was denied or if an alleged victim has changed his or her mind and wants to see previously dismissed case prosecuted. If this were to happen, it is not automatic that the case resumes. There is case law that allows an accused to oppose the motion to reconsider the dismissal or to again seek a dismissal on the case. If the Commonwealth is seeking to reopen your case that was dismissed without prejudice, you should speak to a lawyer regarding your options.

A dismissal with prejudice is rarer and has more serious consequences. It is permissible only where there has been “willfully deceptive or otherwise egregious” misconduct by the prosecution – i.e., intentional withholding of exculpatory evidence – or “at least a serious threat of prejudice” to the defendant. Commonwealth v. Ortiz, 425 Mass. 1011, 681 N.E.2d 272 (1997); Commonwealth v. Connelly, 418 Mass. 37, 38, 634 N.E.2d 103, 104; Commonwealth v. O’Dell, 392 Mass. 445, 450-452, 466 N.E.2d 828, 829 (1982). If the complaint is dismissed with prejudice, the District Attorney’s Office is left with just two remedies: 1) filing a motion to reconsider before the judge that dismissed the case; or 2) appealing from the dismissal. Commonwealth v. Monahan, 414 Mass. 1001, 607 N.E.2d 407 (1993). Examples of cases that were dismissed with prejudice are the drug convictions involving the state chemist Annie Dookhan, who pled guilty to falsifying evidence, obstruction of evidence, and perjury. Additionally, certain inappropriate conduct by the Commonwealth in a grand jury presentation could warrant a dismissal with prejudice. It is important to speak to a lawyer to discuss whether your situation warrants filing a motion to dismiss.


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