Prejudice (legal term)

Prejudice is a legal term with different meanings, which depend on whether it is used in criminal, civil, or common law. In legal context, prejudice differs from the more common use of the word and so the term has specific technical meanings.

Two of the most common applications of the word are as part of the terms with prejudice and without prejudice. In general, an action taken with prejudice is final. For example, dismissal with prejudice forbids a party to refile the case and might occur because the court finds the alleged facts cannot form a valid claim, or due to misconduct on the part of the party that filed the claim or criminal complaint, or as the result of an out-of-court agreement or settlement. Dismissal without prejudice (Latin: salvis iuribus, lit. 'to preserved rights') allows the party the option to refile and is often a response to procedural or technical problems with the filing that the party may be able to correct by making a new or amended filing.

The origin of the word in its legal sense is Latin: prejūdicium, 'a preceding judgement or decision'.

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 of 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 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. In the case of a bench trial (trial by the judge only), jeopardy attaches when the first witness in the case is sworn.