NCJ Number
84261
Journal
Southern California Law Review Volume: 55 Issue: 5 Dated: (July 1982) Pages: 1133-1153
Date Published
1982
Length
21 pages
Annotation
The broad discretion that accompanies a prosecutor's charging decisions has occasionally led to vindictive prosecutions of defendants who exercise their statutory and constitutional rights.
Abstract
As a result of vindictive prosecutions, a judicial rule has been developed to bar such actions. Necessity for protecting the defendant was addressed by the U.S. Supreme Court in Blackledge v. Perry (1974) and Borderkircher v. Hayes (1978). However, opinions rendered in these two cases conflict on several points, and implementation of the current rule has been confused. To solve this problem, a rule is proposed that will avoid deterring defendants from exercising their rights for fear of future retaliation. The prosecution should be constrained to its original charging decision unless new information arises which clearly dispels any suspicion of a vindictive motive. Under this rule, discovery of new evidence justifying a new indictment should automatically rebut a presumption of vindictiveness, and any justification based upon mistake should be automatically rejected. The rule would create the optimum balance between protection of defendants from the appearance of prosecutorial vindictiveness and preservation of prosecutorial discretion. The note provides 130 footnotes.