Selective Prosecution

Often clients come to their attorneys with a story that they do not realize their attorney has heard before. It usually goes something like this: “Look, I did (insert violation of the law), but you don’t understand – this prosecutor is out to get me. The sort of activity I engaged in is standard industry practice, and this individual is just using his/her prosecutorial power to get revenge for a past grudge.” There are several issues with such a statement, but first let’s get the most obvious out of the way. The “everybody else is doing it” defense didn’t work when you mother caught you smoking cigarettes, and it doesn’t work in a court of law, either. To be clear: Evidence of the commission of similar unprosecuted offenses by others is no defense to a charge of violating antitrust law. However, there remains some validity to the defense of selective prosecution; that is, the defense that the prosecution is based on an impermissible motive.

So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. This has long been the case in United States law, and courts are reluctant to interfere in this area of executive discretion. However, a prosecution may not be based on an unjustified standard, such as race, religion, or other arbitrary classification. A personal grudge would undoubtedly qualify as an arbitrary classification. Now comes the hard part.

In order to make a successful defense of selective prosecution, the defendant must show two things. First, he must show an improper motive of the government in prosecuting the case. This is a constitutional issue, since prosecutions may not be based on arbitrary classifications. This is hard enough, since proving an existing grudge would lead to a headache of proof problems. However, beyond that, a defendant must next show that the improper purpose did in fact motivate the prosecution. So, if enough probable cause exists for an indictment to be issued, right off the bat there are two possibilities for what motivated the prosecution – the improper motive, and the facts uncovered by the investigation. Moreover, the improper motive is likely not proven, while the facts uncovered are likely undisputed. Since courts are loathe to question this area of prosecutorial discretion (for fear of chilling enforcement of the laws), selective prosecution is rarely a successful defense.