Prosecutorial vindictiveness

Prosecutorial vindictiveness is retaliation by the prosecutor against the defendant for the defendant exercising a right.

Cases

Supreme Court of the United States cases

North Carolina v. Pearce (1969) 395 U.S. 711 [89 S.Ct. 207, 223 L.Ed.2d 656]

Facts

Holding

Reasoning

Notable quotes

Blackledge v. Perry (1974) 417 U.S. 21 [94 S.Ct. 2098, 40 L.Ed.2d 628]

Facts

Appellant was charged with misdemeanor assault. He requested a trial de novo per North Carolina law. He was then charged with felony assault.

Holding

Reasoning

Notable quotes

United States v. Goodwin (1982) 457 U.S. 368 [102 S.Ct. 2485, 73 L.Ed.2d 74].

Facts

Holding

Reasoning

Notable quotes

The government violates a defendant's right to due process of law if it files charges to penalize her for exercising a protected statutory or constitutional right.

Federal cases

United States v. Ruesga-Martinez (1976) 534 F.2d 1367

Facts

The defendant was charged with a misdemeanor violation of 8 U.S.C. § 1325, unlawfully entering the United States. The defendant refused to waive the right to trial by jury or the right to be tried by a district judge. The defendant was then charged with felony violations of 8 U.S.C. §§ 1325 and 1326. There were no new facts that were unknown at the time of the original charging.

Holding

When a defendant is re-charged with more severe offenses and no new facts justify the new charges, prosecutorial vindictiveness is presumed, violtaing the defendant's Due Process rights.

Notable quotes

"[W]when the prosecution has occasion to reindict the accused because the accused has exercised some procedural right, the prosecution bears a heavy burden of proving that any increase in the severity of the alleged charges was not motivated by a vindictive motive."(United States v. Ruesga-Martinez (1976) 534 F.2d 1367, 1369.)

"Pearce and Blackledge seek to reduce or eliminate apprehension on the part of an accused that he may be subjected to retaliatory or vindictive punishment by the prosecution only for attempting to exercise his procedural rights. Hence, the mere appearance of vindictiveness is enough to place the burden on the prosecution. . . . [T]he ensuing increase in the severity of the charges against him created a sufficient appearance of vindictiveness to bring the principles of Pearce and Blackledge into application." (United States v. Ruesga-Martinez (1976) 534 F.2d 1367, 1369.)

"Pearce and Blackledge apply regardless of whether the accused asserts a constitutional right, a common law right, or a statutory right." (United States v. Ruesga-Martinez (1976) 534 F.2d 1367, 1370.)

"[I]n view of the clear mandate of Pearce and Blackledge, we find no merit in [the] suggestion that the power of the prosecution to adjust the charges against an accused at will inheres in its power to engage in plea bargaining. ((United States v. Ruesga-Martinez (1976) 534 F.2d 1367, 1370–1371.)

United States v. Grove (9th Cir. 1978) 571 F.2d 450 Establishing a presumption of vindictiveness does not require “that the prosecutor acted in bad faith” or that he “maliciously sought” the new charges indictment.(United States v. Grove (9th Cir. 1978) 571 F.2d 450, 453.)

United States v. Gallegos-Curiel (9th Cir. 1982) 681 F.2d 1164

Prosecutorial vindictiveness may be established by direct evidence of the prosecutor's punitive motivation. (United States v. Gallegos-Curiel (9th Cir. 1982) 681 F.2d 1164, 1168)

If additional charges “were filed because [she] exercised a statutory, procedural, or constitutional right in circumstances that give rise to an appearance of vindictiveness.” (United States v. Gallegos-Curiel (9th Cir. 1982) 681 F.2d 1164, 1168)

"[T]he appearance of vindictiveness results only where, as a practical matter, there is a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for hostility or a punitive animus towards the defendant because he has exercised his specific legal rights.” (United States v. Gallegos-Curiel (9th Cir. 1982) 681 F.2d 1164, 1169)

The prosecution must show that the additional charges “did not stem from a vindictive motive, or [were] justified by independent reasons or intervening circumstances that dispel the appearance of vindictiveness.” Gallegos-Curiel, 681 F.2d at 1168.

United States v. Jenkins (2007) 504 F.3d 694

Facts

The defendant was caught twice trying to smuggle aliens across the border, but not charged. The defendant was then caught crossing the border with drugs and charged with importation of marijuana. At trial, the defendant testified in her own defense. During jury deliberations, the government added the previously uncharged alien smuggling counts. The government conceded it had sufficient evidence to charge the alien smuggling before the defendant's trial testimony.

Holding

Notable Quotes

The defendant need only demonstrate a "reasonable likelihood" that the charges were added for exercising a right. (United States v. Jenkins (2007) 504 F.3d 694, 700.)

"The mere appearance of prosecutorial vindictiveness suffices to place the burden on the government because the doctrine of vindictive prosecution 'seeks[s] to reduce or eliminate apprehension on the part of an accused' that she may be punished for exercising her rights." (United States v. Jenkins (2007) 504 F.3d 694, 700, quoting United States v. Ruesga-Martinez (9th Cir. 1976) 534 F.2d 1367, 1369.)

The new charges do not have to "arise out of the same nucleus of operative fact". (United States v. Jenkins (2007) 504 F.3d 694, 700–701.)

But see United States v. Jenkins (9th Cir. 2008) 518 F.3d 722 (dis. opn. of Kozinski, J.).)