Judicial deference to a prosecutor's broad discretion to initiate and
conduct criminal prosecutions is generally guided by the separation of
powers doctrine and the recognition that the decision to prosecute is
particularly ill suited to judicial review.Courts recognize a rebuttable
presumption that criminal prosecutions are undertaken in good faith and in
a nondiscriminatory manner. As long as a prosecutor has probable cause to
believe that the accused has committed an offense, the decision to prosecute
generally rests entirely in her discretion. A prosecutor also has broad
authority to decide whether to investigate, grant immunity, or permit a
plea bargain, and to determine what charges to bring, when to bring charges,
and where to bring charges. In addition, a prosecutor enjoys absolute
immunity from civil liability for actions taken in initiating a prosecution.
There are limits to the exercise of a prosecutor's discretion however, and
the judiciary has a responsibility to protect individuals from prosecutorial
conduct that violates constitutional rights. Such conduct generally
involves either selective prosecution, which denies equal protection of the
laws, or vindictive prosecution, which violates due process.
Selective Prosecution. A prosecutor's decision to bring charges will rarely
violate the equal protection clause. In Wayte v. United States, the Supreme
Court held that to demonstrate selective prosecution a defendant must show
both that she was treated disparately and that her prosecution was
improperly motivated. Discriminatory treatment arises if others similarly
situated have not been prosecuted, while improper purpose entails selection
that “was deliberately based upon an unjustifiable standard such as race,
religion, or other arbitrary classification.” Because there is a
presumption that the prosecution is undertaken in good faith, a defendant
challenging an indictment on selective prosecution grounds generally bears a
heavy burden of proving facts sufficient to satisfy these two requirements.
The courts of appeals have ruled on a few procedural issues related to
presentation of selective prosecution claims that were not addressed in
Wayte. For example, in a motion to compel discovery, the defendant need only
show a colorable basis for a claim of selective prosecution.718 In a motion
for an evidentiary hearing, however, the defendant must make out a prima
facie case of selective prosecution. Additionally, the defense of selective
prosecution is waived unless properly raised before trial.
Vindictive Prosecution. A prosecutor's use of the charging process can
violate due process if it penalizes the exercise of constitutional or
statutory rights. In Blackledge v. Perry, the Supreme Court held that the
due process clause prohibits a prosecutor from bringing a more serious
charge against a defendant who has pursued a statutory right of appeal from
a conviction on a lesser charge for the same offense. Although the defendant
in Blackledge did not show actual vindictiveness on the part of the
prosecutor, the Court held that due process requires that a defendant be
free of even the apprehension of vindictiveness so that she is not deterred
from exercising her procedural rights. If the defendant does demonstrate
actual vindictiveness, however, she establishes a per se due process
violation.
To ensure that defendants are not threatened by vindictiveness, courts
recognize a rebuttable presumption of vindictiveness whenever prosecutors
increase the number or severity of charges after the defendant's assertion
of legally protected rights. Only a showing of events outside the
proceedings and subsequent to the original indictment that justify the
reindictment will overcome the presumption of vindictiveness. The
presumption does not arise, however, when objective circumstances indicate
the prosecutor's decision to reindict was not vindictive.
The Supreme Court has drawn a clear distinction between cases in which the
alleged vindictiveness occurs before trial and cases in which it occurs
during or after trial. In Bordenkircher v. Hayes, the Court found no due
process violation when the prosecutor threatened during plea negotiations to
reindict the defendant on a more serious charge if the defendant refused to
plead guilty to the lesser crime originally charged. Reasoning that a due
process violation lies “not in the possibility that a defendant might be
deterred from the exercise of a legal right . . . but rather in the danger
that the State might be retaliating against the accused for lawfully
attacking his conviction,” the Court concluded that the danger of
retaliation does not exist in a plea bargaining setting when the accused is
fully informed of the terms of the offer and is free to accept or reject it.
The Supreme Court further limited the presumption of prosecutorial
vindictiveness in the pretrial context in United States v. Goodwin. The
Court rejected the defendant's argument that indictment on a felony charge
following his request for a jury trial on pending misdemeanor charges gave
rise to a presumption of vindictiveness. The Court noted that in the
pretrial context, reindictment on a more serious charge does not present the
same appearance of prosecutorial vindictiveness that arises when a
prosecutor reindicts a defendant who has successfully exercised the right to
obtain a new trial on a previously litigated issue. Because a defendant is
expected to invoke procedural rights before trial that impose some burden on
a prosecutor, the Court explained that it is unrealistic to presume that a
prosecutor's response to pretrial motions would be an effort to penalize or
deter the defendant. Furthermore, because a prosecutor may discover
additional information or recognize a basis for broader prosecution while
preparing for trial, the Court held that a prosecutor should remain free
before trial to exercise broad discretion in determining the extent of the
societal interest in prosecution. Therefore, in these circumstances, a
defendant must demonstrate actual vindictiveness to prove a due process
violation.
The standard of review for selective and vindictive prosecution
determination is unclear,although most courts have applied either the abuse
of discretion or the clearly erroneous standards.
