VINDICTIVE AND SELECTIVE PROSECUTION
WHAT IS VINDICTIVE PROSECUTION?
Vindictive prosecution is when a prosecutor violates a defendant’s due process rights and if they are using their decision to prosecute the defendant for purposes of retaliation.
The following instances constitute vindictiveness:
- Where the prosecutor charges the defendant with a more serious offense after the defendant appeals the conviction of the lesser offense
- Where the prosecutor charges the defendant with an offense although the defendant has not violated the law.
The following represent instances that DO NOT constitute vindictiveness:
- Adding a charge after the defendant withdraws from a plea bargain agreement
- Indicting the defendant on a more serious charge after the defendant rejected a plea agreement
- Indicting the defendant on a new charge after a mistrial occurred
- Indicting the defendant on a more serious charge after discovering that there was an error in the original information or indictment.
PRESUMPTION OF VINDICTIVENESS
If the presumption of vindictiveness arises, the presumption may be rebutted by showing that a legitimate and objective reason supported the change in the indictment or the basis for the indictment itself. However, if no presumption of vindictiveness arises, the defendant may show that the prosecutor was actually vindictive in her prosecution. The defendant may present direct evidence showing that the prosecutor was vindictive.
WHAT IS SELECTIVE PROSECUTION?
Selective prosecution is when the prosecutor bases her decision of whether to prosecute on the basis of race, gender, or ethnicity. If they do this then the prosecutor may be guilty of selective prosecution.
A claim of selective prosecution must be raised in a timely manner before the trial has commenced otherwise the claim may be regarded as untimely and waived. In order for the defendant to prevail on a selective prosecution claim they must overcome the strong presumption that prosecutors have properly performed their duties. A selective prosecution claim is typically analyzed in accordance with the equal protection standards.
The defendant must produce evidence that shows:
- The prosecutor engaged in selective prosecution
- The selective prosecution had a discriminatory effect upon the defendant
- The selective prosecution was pursued with discriminatory intent.
If you need help with this subject contact the legal team of Underwood & Associates with the link below https://www.yourcriminaldefenseattorney.com/blog/2020/october/vindictive-and-selective-prosecution/
Learn more about these sujects
- Malicious Prosecution
- Prosecutional Misconduct
- Vindictive Prosecution
- Retaliatory Prosecution
- Abuse of Process
Selected Issues in Malicious Prosecution Cases
Malicious Prosecution / Prosecutorial Misconduct
Vindictive Prosecution – Georgetown University
VINDICTIVE AND SELECTIVE PROSECUTION
What is Abuse of Process?
Defeating Extortion and Abuse of Process in All Their Ugly Disguises
What’s the Difference between Abuse of Process and Malicious Prosecution?
Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully
Frivolous, Meritless or Malicious Prosecution
SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution
Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors
National District Attorneys Association – National Prosecution Standards – NDDA
What Happens If Charges Are Dropped Before Trial?
Functions and Duties of the Prosecutor – Prosecution Conduct
Possible courses of action Prosecutorial Misconduct
Misconduct by Judges & Prosecutor – Rules of Professional Conduct
PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise
Thomp$on v. Clark – Maliciou$ Pro$ecution
Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment
People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor
Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment
What is a Fiduciary Duty; Breach of Fiduciary Duty
Epic SCOTUS Decisions
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We also have the First Amendment Encyclopedia very comprehensive and encompassing
CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence
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42 U.S. Code § 1983 – Civil action for deprivation of rights
18 U.S. Code § 242 – Deprivation of rights under color of law
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Suing for Misconduct – Know More of Your Rights
Police Misconduct in California – How to Bring a Lawsuit
Recoverable Damages Under 42 U.S.C. Section 1983
Section 1983 Lawsuit – How to Bring a Civil Rights Claim
DEPRIVATION OF RIGHTS UNDER COLOR OF LAW
How to File a complaint of Police Misconduct?
Suing for Misconduct – Know More of Your Rights
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Prosecutorial Misconduct, What is it?
Frivolous, Meritless or Malicious Prosecution
Malicious Prosecution / Prosecutorial Misconduct
Vindictive Prosecution – Georgetown University
VINDICTIVE AND SELECTIVE PROSECUTION
Misconduct by Judges & Prosecutor
CALIFORNIA ATTORNEY MISCONDUCT LAW
Equality Act 2010 – Discrimination and mental health
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118.1 PC – Police Officers Filing False Reports