(Applicable to District Court and Superior Court)
(a) Entry of a Nolle Prosequi. A prosecuting attorney may enter a nolle prosequi of pending charges at any time prior to the pronouncement of sentence. A nolle prosequi shall be accompanied by a written statement, signed by the prosecuting attorney, setting forth the reasons for that disposition.
(b) Entry of a Nolle Prosequi During Trial. After jeopardy attaches, a nolle prosequi entered without the consent of the defendant shall have the effect of an acquittal of the charges contained in the nolle prosequi.
While similar to Fed.R.Crim.P. 48, this rule is a formalization of prior Massachusetts practice.
Subdivision (a). The decision to enter a nolle prosequi as to all or any distinct part of pending charges is discretionary with the prosecuting attorney.
Power to enter a nolle prosequi is absolute in the prosecuting officer from the return of the indictment up to the beginning of trial, except possibly in instances of scandalous abuse of the authority.
Commonwealth v. Dascalakis , 246 Mass. 12, 18 (1923). See Manning v. Municipal Court of Roxbury , 372 Mass. 315 (1977); Commonwealth v. Massod , 350 Mass. 745 (1966). This rule is consistent with the common law. See 30 MASS. PRACTICE SERIES (Smith) §§ 854, 858 (1970, Supp.1978).
Rule 48(a) of the Federal Rules of Criminal Procedure permits dismissal by the prosecution only with leave of court. It did not seem advisable to engraft this additional requirement onto the Massachusetts rule, however, since it is doubted that the court has the power to compel the Commonwealth to proceed with a case which it does not believe warrants prosecution. See 3 C. WRIGHT, FEDERAL PRACTICE & PROCEDURE: CRIMINAL § 812 at 304 (1969).
The term “prosecuting attorney” in this rule is intended to include municipal attorneys, e.g., city solicitors, prosecuting a case. See G.L. c. 278, § 15 .
General Laws c. 277, § 70A is the basis for the second sentence of this subdivision which requires the prosecuting attorney to file a statement of his reasons for entering a nolle prosequi. 30 MASS. PRACTICE SERIES (Smith) § 857 (1970, Supp.1978); see ABA Standards Relating to the Prosecution Function § 4.4 (Approved Draft, 1971).
Subdivision (b). Once a case has reached trial, the defendant has been placed in jeopardy and has the right to have the issue of his guilt adjudicated. Commonwealth v. Massod , 350 Mass. 745 (1966). If after commencement of trial, but before return of the verdict, the prosecuting attorney enters a nolle prosequi without the consent of the defendant, the defendant is effectually acquitted of those charges which are the subject of the nolle prosequi. Commonwealth v. Hart , 149 Mass. 7 (1889); Commonwealth v. Dascalakis , 246 Mass. 12 (1923); Commonwealth v. Sitko , 372 Mass. 305 (1977); 30 MASS. PRACTICE SERIES (Smith) § 855 (1970). This comports substantially with Fed.R.Crim.P. 46(a), which prohibits the filing of a dismissal during trial without the consent of the defendant.