What is Selective Prosecution and How Does It Impact My Criminal Case?

person pointing at you as an example of selective prosecution

Introduction to Selective Prosecution

person pointing at you as an example of selective prosecutionAmerican citizens and residents who find themselves charged with a crime have a legitimate expectation that they will be treated fairly by the prosecution. When the prosecution does not treat a defendant fairly, the first question defendants will usually want answered is whether there is anything they can do about it. The answer depends on whether the unfair treatment amounts to “selective prosecution.”

Defining Selective Prosecution

“Selective prosecution” is a term that is related, but distinct from “prosecutorial discretion.” Prosecutorial discretion refers to a prosecutor’s broad discretion to prosecute certain individuals and not prosecute others. In general, a prosecutor is permitted to charge those individuals he or she wishes (assuming there is a valid and sufficient basis for doing so, of course), offer plea bargains to those defendants he or she deems appropriate, and decline to prosecute certain cases. Selective prosecution refers to when a prosecutor unfairly, unreasonably, and or unethically employs his or her prosecutorial discretion to the detriment of a defendant based on that defendant’s age, race, ethnicity, or any other prohibited classification.

Proving Selective Prosecution in Your Case

A claim of selective prosecution should be contained in a motion to dismiss filed before your case reaches the trial stage. If you can prove the prosecutor in your case has selected to prosecute you based on a protected classification, you may be entitled to the dismissal of your charges. However, proving selective prosecution is extremely challenging as the prosecutor’s discretion is given a great deal of discretion. To prove selective prosecution, you as the defendant must show:

  • The prosecutor has exercised his or her prosecutorial discretion in such a manner as to have a discriminatory effect against the defendant when compared with other individuals equally situated. In other words, you have to show that you were treated unequally based upon a constitutionally-protected classification when compared with other individuals who found themselves in your position. For example, if you are charged with possession of marijuana, you would need to show that all other individuals similar to you (same age, same race, same religion, and/or same ethnicity) were prosecuted harshly for this crime but other individuals were not.
  • The prosecutor employed his or her discretion with discriminatory intent. That is, not only must you prove there is a discriminatory effect to the prosecutor’s exercise of discretion but also that this was the intended effect of the prosecutor’s actions. Although divining the prosecutor’s intent in your case may be difficult, you are permitted to prove this element through circumstantial evidence if necessary.

Once you have demonstrated that there is a reason to believe your claim of selective prosecution has merit, a court will typically allow you an opportunity to ask for specific discovery from the prosecutor’s office. This can include data maintained by the prosecutor’s office concerning the cases it prosecutes, the disposition of those cases, and other materials that may be relevant to your claim. After discovery has been completed, your motion will be heard again and you will have an opportunity to present the evidence you discovered. If the court believes that the prosecutor has engaged in selective prosecution, the court will dismiss your case.  For more information on selective prosecution see the article on Wikipedia.

Conclusion to Selective Prosecutionconclusion to selective prosecution and how it affects your case

Prosecutors have certain ethical duties they must follow: one of these duties is to not unlawfully discriminate against defendants who are similarly situated and charged with the same or similar crimes. If you believe the prosecutor has unfairly decided to prosecute you, you are permitted to file a selective prosecution claim and show that the prosecutor’s actions in your case were both discriminatory in their effect and were motivated by a discriminatory motive. Success in proving your claim can result in the dismissal of your case.  For more information contact one of our experienced criminal defense attorneys.



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