Massachusetts Guidelines for Judicial Practice Abuse Prevention Proceedings Guideline 8:12

The court should not dismiss any criminal case over the objection of the Commonwealth without a basis grounded in a violation of the defendant's constitutional or statutory rights. In order to support a dismissal, any violation of the defendant's rights must prejudice the defendant such that dismissal is the only sufficient remedy. The court may not dismiss a complaint because the court believes, as a matter of policy, that the case should not be prosecuted.

There is no question that the court has the authority to dismiss a complaint over the objection of the Commonwealth based on a violation of the defendant's rights, such as a defective complaint or a violation of the right to speedy trial. Such dismissals must be requested by motion.Mass. R. Crim. P. 13. A judge may not, however, dismiss a criminal case because the judge has made a discretionary determination that the case should not be tried based upon the judge's view of the evidence.Commonwealth v. Everett, 88 Mass. App. Ct. 902, 904 (2015). See Commonwealth v. Taylor, 428 Mass. 623, 628-630 (1999) (judge may not continue case for the sole purpose of a desire to see the case ultimately dismissed).

“[P]retrial dismissal, over the Commonwealth's objection, of a valid complaint or indictment before a verdict, finding, or plea, and without an evidentiary hearing basically quashes or enters a nolle prosequi of the complaint or indictment.” Commonwealth v. Pellegrini, 414 Mass. 402, 404 (1993). “A decision to nolle prosequi a criminal case rests with the executive branch of government and, absent a legal basis, cannot be entered over the Commonwealth's objection.” Id. at 405.

Justice Morton stated in Commonwealth v. Tuck, 20 Pick. 356, 364-365 (1838), “the authority of the Attorney General [or District Attorney], when present, to conduct and manage all criminal prosecutions is unquestionable. It is his exclusive duty to do so.” “The district attorney is the people's elected advocate for a broad spectrum of societal interests--from ensuring that criminals are punished for wrongdoing, to allocating limited resources to maximize public protection.” Commonwealth v. Gordon, 410 Mass. 498, 500 (1991).

While the phrase “the victim wants to drop the charges” is sometimes used in these cases, it is important to remember that the named victim is not a party in a criminal case. A criminal prosecution is not intended to vindicate the interests of the named victim, but rather, the interests of the public as a whole, as represented by the prosecutor. “In American jurisprudence ․․․ a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another.” Whitley v. Commonwealth, 369 Mass. 961, 962 (1975), quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Thus, the law is clear, and this Guideline emphasizes, that it is inappropriate for a judge, over the Commonwealth's objection, to dismiss a criminal case because the judge has made a discretionary determination that the case should not be tried due to the named victim's reluctance or otherwise. This is a decision that the law leaves to the prosecutor. The prosecutor may have facts that are not known to the judge. These facts may include information concerning the defendant and the named victim, such as past history, mental status, and potential for danger.