2 Types of Case Dismissals – With or Without Prejudice

In the criminal justice system, there are two different types of case dismissals, with and without prejudice. A case being dismissed “with prejudice” or “without prejudice” can be confusing to keep straight, but it can be crucial to your defense strategy. With and without prejudice are the formal legal terms for the different ways cases get dismissed, but they each carry different weight and consequences, both for you and the State’s prosecution. Whether a judge will grant prejudice or not will depend upon the reason for the dismissal.

The starting ground for understanding the two different types of dismissals is to first identify the foundational law as written in the revised statutes of Missouri. Thus, under 510.150, the statute reads as such,

Effect of dismissals, with and without prejudice:

A dismissal without prejudice permits the party to bring another action for the same cause unless the action is otherwise barred. A dismissal with prejudice operates as an adjudication upon the merits. Any voluntary dismissal other than one which the party is entitled to take without prejudice, and any involuntary dismissal other than one for lack of jurisdiction or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify.

This statute lays the groundwork for when and how dismissals attach. Although the legal verbiage may be confusing to grapple with, it is important to view the starting point.

With Prejudice

A court case that is dismissed with prejudice is dismissed permanently. In other words, once the judge attaches prejudice to a case dismissal, the State has effectively lost in its bid to convict the defendant. The State cannot attempt to try the case again and the case is closed. If your case was dismissed with prejudice, it could be appealed to a higher court, but the State cannot refile the charges since that is a direct double jeopardy violation.

Thus, a case dismissed with prejudice is over and done with can cannot be brought back to court any longer upon the initial grounds. For any US Constitution buffs, this is where the fifth amendment double jeopardy clause comes in, which prohibits defendants from being tried twice as no person can be “twice put in jeopardy of life or limb.” Under the revised statutes of Missouri, double jeopardy attaches in a jury trial when the jury has been impaneled and sworn. Then double jeopardy attaches in a court-tried case when the court begins to hear evidence. After these events, the court has deemed that this is enough to constitute a trial to which the prosecutor may not attempt to charge again under the fifth amendment. A prosecutor will never voluntarily dismiss with prejudice since that means his day in court is over and he lost in the attempt to convict.

Without Prejudice

A case dismissed without prejudice, unsurprisingly, means the opposite. It is not dismissed permanently, so the State can refile and attempt to convict you. However, remember that the State must abide by the statute of limitations, so the State must refile within accordance of the time limit set by the jurisdiction’s statute of limitations. If the State fails to refile your case within time, then the case is barred from reopening.

Cases which are dismissed on non-constitutional grounds will not have prejudice attach since they are deemed not to have affected the unalienable rights of the defendant. Prosecutors may wish to voluntarily dismiss without prejudice if their witnesses do not appear or refuse to cooperate. Without the witness to testify, the prosecutor usually will not have a viable case to charge, so they will dismiss. That may be the last you hear of the case, or the State may refile the charges. Sometimes the State will refile the charges the same day, to keep the defendant in custody. Other times, if a new incident happens concerning the victim, then the prosecutor can dismiss voluntarily and refile the new incident along with the old charges. This allows the prosecutor to shore up their case with all relevant and pertinent information against the accused.

If you are facing criminal charges, consult an experienced criminal defense attorney. If you have a case that has been refiled after a previous dismissal your attorney will look closely at the type of dismissal and make sure that the State refiled the case within the applicable statute of limitations.