A prosecutor may violate a defendant’s due process rights 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.
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.
If the prosecutor bases her decision of whether to prosecute on the basis of race, gender, or ethnicity than 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.