Yeah, my bad. I replied before I scrolled all the way down.
At least three states (connecticu, north carolina, maine) allow the court to order a dismissal as a possible sancttion for particularly egregious violations of disclosure obligations. For example, Maine’s rules state the following:
If the attorney for the state fails to comply with this rule, the court on motion of the defendant or on its own motion may take appropriate action, which may include, but is not limited to, one or more of the following: requiring the attorney for the state to comply, granting the defendant additional time or a continuance . . . prohibiting the attorney for the state from introducing specified evidence and dismissing charges with prejudice.140
I don’t know. It might have something to do with specific court rules in New Mexico, but regardless, it’s double jeopardy that prevents a retrial, not the “with prejudice” part.
Wikipedia seems to indicate that, for criminal trials, “dismissal with prejudice” describes dismissal after jeopardy has been attached, other than for mistrial (and thus not permitting a retrial):
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 a 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, such as 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.[3] In the case of a bench trial (trial by the judge only), jeopardy attaches when the first witness in the case is sworn.[4]
I’m definitely not a lawyer, so I can’t say anything to whether or how this vocabulary is used in actual court documentation in different venues.
From the NC Defender Manual (a different state, so merely analogous)
Practice note: Do not join in the State’s motion for mistrial if you do not believe your client was prejudiced by a co-defendant’s misconduct. If you join in the State’s motion (or appear to consent), you will waive any future claim to dismissal based on double jeopardy. See infra § 31.9D, Mistrial Granted on Defendant’s Motion or with Consent.
This was a defendant’s motion, so “dismissal with prejudice” underscores the fact that double jeopardy rights have not been waived.
I expect there will be a “dismissal with prejudice” in the near future for another notorious defendant.
A mistrial is a completely different animal than a dismissal. In a mistrial, charges can be refiled. It’s as if the trial never happened.
The right to not be subject to double jeopardy is a Constitutional mandate and cannot be waived.
ETA: if you’re talking about Trump with the last sentence, other than the Stormy Daniels case, juries have not been empaneled yet. Jeopardy hasn’t yet attached in those.
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