Dismissed with prejudice

Prejudice is a legal term with different meanings when used in criminal, civil or common law. Often the use of prejudice in legal context differs from the more common use of the word and thus has specific technical meanings implied by its use.

Two of the more common applications of the word are as part of the terms "with prejudice" and "without prejudice". In general, an action taken with prejudice is essentially final; in particular, "dismissal with prejudice" would forbid a party from refiling the case, and might occur either because of misconduct on the part of the party who filed the claim or criminal complaint or could be the result of an out of court agreement or settlement. Dismissal without prejudice (in Latin, "salvis iuribus") would leave the party an option to refile, and is often a response to procedural or technical problems with the filing that the party could correct when filing again.

Depending on the country, a criminal proceeding which ends prematurely due to error, mistake, or misconduct may end as being dismissed with prejudice or without prejudice. If the case ends without prejudice, the accused in the case (the defendant) may be retried. If the case ends with prejudice, the effect on the defendant (for the purpose of punishment) is the equivalent to a finding of not guilty and they cannot be retried.

Some countries, however, allow the prosecution to appeal any acquittal.

In the United States, if there is a mistrial, or the case is overturned on appeal, generally this is without prejudice and (in the case of decision overturned on appeal) either all of the case is retried, or, if not all of the case is overturned, the parts that were overturned (like a sentencing hearing) are retried. If the case is dismissed because of prosecutorial misconduct, it will typically be dismissed with prejudice, which means that the defendant cannot be retried.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits that "any person be subject for the same offence to be twice put in jeopardy of life or limb". Outside of mistrial or appeal, the rule for whether or not a case is dismissed with or without prejudice thus depends on what condition the case is in and whether "jeopardy" has attached to the case. If jeopardy is attached to a case, a dismissal or a resolution is "with prejudice" and the case can never be litigated again. In the case of a trial by jury, jeopardy attaches when the jury is empaneled and a dismissal (for prosecutorial misconduct or harmful error) at that point must be with prejudice. In the case of a bench trial (trial by the judge only), jeopardy attaches when the first witness in the case is sworn.

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