13 Amjur Pof 2d 609 1

13 Am. Jur.
Proof of Facts 2d 609
American Jurisprudence Proof of Facts 2d

Database updated July 2006
Categorical List of Articles
Discriminatory Enforcement of Criminal Law
Jimmie E. Tinsley, J.D.
ARTICLE OUTLINE
I Background
§ 1 In general
§ 1.5 Vindictive enforcement
§ 2 Availability of defense; common situations in which defense is raised
§ 2.3 Discrimination in tender of plea bargain
§ 2.5 Discrimination in selection of participants for pre-trial diversion
program
§ 2.7 Death penalty discrimination claims
§ 3 Persons or officials responsible for discriminatory enforcement
§ 4 Remedies and relief available
§ 4.3 Remedies--Under Hyde Amendment
§ 4.5 Remedies--Under Civil Rights Acts
§ 5 Elements of discriminatory enforcement--In general
§ 6 Elements of discriminatory enforcement--Requirement of selectivity
§ 7 Elements of discriminatory enforcement--Requirement of purpose or intent to
discriminate
§ 8 Elements of discriminatory enforcement--Requirement of arbitrary or
invidious standard of enforcement
§ 9 Burden and quantum of proof
§ 10 Burden and quantum of proof--The prima facie case
§ 11 Evidence
§ 12 Evidence--Discovery
§ 13 Evidence--Rebuttal
§ 14 Criticisms and suggested changes
§ 15 Practice pointers
II Proof of Discriminatory Enforcement of Law Against Individual Exercising
Constitutional Rights
A Elements of Proof
§ 16 Guide and checklist
B Testimony of Chief of Police
§ 17 Knowledge of frequent violations of law
§ 18 Policy of nonenforcement of law
C Testimony of Prosecutor
§ 19 Previous and subsequent nonenforcement of law
§ 20 Use of special procedures in prosecution of defendant
Page 1 of 99
§ 21 Knowledge of political activity by defendant
D Testimony of Defendant
§ 22 Previous nonenforcement of law
§ 23 Political activity by defendant
§ 24 Prosecutor's admission of improper motive
III Proof of Discriminatory Enforcement of Prostitution Laws Against Women
A Elements of Proof
§ 25 Guide and checklist
B Testimony of Commander of Vice Division
§ 26 Enforcement policies and procedures directed at women
§ 27 Enforcement statistics
§ 28 Failure to arrest male customers
§ 29 Lack of justifiable reasons for selective enforcement of law
C Testimony of Commander of Vice Division in Comparable Jurisdiction
§ 30 Use of sexually neutral enforcement policies
§ 31 Enforcement statistics
§ 32 Deterrent effect of sexually neutral enforcement
D Testimony of Investigator
§ 33 Violations of statute by men
§ 34 Police knowledge of violations by men
INDEX
Admission of improper prosecutorial motive—,

evidence of discriminatory enforcement, as constituting,, § 11
testimony concerning,, § 24
Affirmative defense, availability of claim as,, § 4
Arbitrary or invidious criteria—,
generally,, § 8
element of claim,, §§ 1, 5, 8
evidence of,, §§ 8, 11
rebuttal,, § 13
Blue laws, see Sunday laws, discriminatory enforcement of
Burden of proof—,
generally,, § 9
criticisms of,, § 14
rebuttal,, §§ 10, 13
Census laws, discriminatory enforcement of—,
evidence showing,, §§ 11, 15
investigation by defendant showing,, § 15
Citizens, claim based on actions of,, § 3
City council, claim based on actions of,, § 3
Class actions, availability of relief in,, § 4
Class or group, discriminatory enforcement of law against—,
generally,, § 2
proof of,, §§ 25– 34
Consensual offenses, discriminatory enforcement as defense to prosecution for,,
§ 2
Constitutional rights, prosecution based on exercise of—,
arbitrary or invidious discrimination, as constituting,, §§ 2, 8
evidence showing,, § 11
political activity by defendant, testimony concerning,, §§ 21, 23
proof of,, §§ 16– 24
rebuttal of claim,, §§ 10, 13
County officials, claim based on actions of,, § 3
Criminal prosecution, claim as defense to,, §§ 1, 2, 4
Discovery—,
Page 2 of 99
generally,, § 12
alternatives to,, §§ 12, 15
criticisms of restrictions on,, §§ 12, 14
Discretion of authorities, exercise of—,
criteria of selectivity, as justification for,, § 8
rebuttal, sufficiency of explanation based on,, §§ 10, 13
selective enforcement—,
lack of justifiable reasons for, testimony concerning,, §§ 29, 32
permissibility of,, §§ 3, 5, 8
Dismissal, motion for, as remedy,, § 4
Double jeopardy, attachment of,, § 4
Due process clause, as basis of claim,, § 1
Duration of policy of discriminatory enforcement, showing required,, § 5
Equal protection clause, as basis of claim,, § 1
Evidence—,
generally,, §§ 11– 13, 15
discovery of,, § 12
rebuttal,, § 13
First Amendment rights, prosecution based on excercise of—,
evidence showing,, § 11
rebuttal of claim,, §§ 10, 13
Gambling laws, discriminatory enforcement as defense to prosecution for,, § 2
Individuals, discriminatory enforcement of law against—,
generally,, § 2
difficulty of proving,, § 11
proof of,, §§ 16– 24
Injunctive relief, availability of,, § 4
Intent to discriminate—,
generally,, § 7
allegation of, necessity of,, § 15
criticisms of requirement,, § 14
difficulties of proof,, §§ 7, 11
inference of, prima facie case as raising,, § 10
rebuttal,, § 13
selectivity, evidence of as relevant on issue of,, § 6
Investigation by defendant—,
evidence obtained by,, § 11
investigator, testimony of concerning,, §§ 33, 34
necessity or desirability of,, § 15
Judge, claim based on actions of,, § 3
Knowledge of authorities—,
denials of, effect of,, §§ 7, 13
evidence of,, § 7
political activity of defendant, prosecutor's knowledge of, testimony
concerning,, §§ 21, 24
requirements concerning—,
generally,, §§ 7, 8
violations by others—,
police knowledge of, testimony concerning,, §§ 17, 27, 28, 34
prosecutorial knowledge of, testimony concerning,, § 19
Labor unions, discriminatory enforcement against members or supporters of—,
defense to criminal prosecution, as constituting,, § 2
evidence of,, § 11
Page 3 of 99
Law enforcement officials—,
discriminatory enforcement, responsibility for,, § 3
examination of by defendant, necessity or desirability of,, § 15
reluctance to admit discriminatory enforcement policies,, §§ 7, 11, 15
testimony of—,
chief of police,, §§ 17, 18
commanders of vice divisions,, §§ 26– 32
discriminatory enforcement, as showing,, § 11
Laxity in enforcement, effect of,, §§ 5, 7
Nonenforcement of law against others—,
laws generally unenforced—,
dangers of discriminatory enforcement of,, §§ 2, 14
evidence showing, effect of,, §§ 7, 11
policy of nonenforcement, testimony concerning,, § 18
previous nonenforcement, testimony concerning,, §§ 18, 19, 22
subsequent nonenforcement, testimony concerning,, § 19
laws selectively enforced—,
generally,, §§ 5– 8
lack of justification for selectivity, testimony concerning,, §§ 29, 32
neutral enforcement, greater deterrent effect of, testimony concerning,, §§
29, 30, 32
selective enforcement, testimony concerning,, § 26
statistical evidence showing, testimony concerning,, § 27
Officials responsible for discriminatory enforcement, generally,, § 3
Ordinance, discriminatory enforcement of,, § 1
Passive enforcement, effect of,, § 7
Persons responsible for discriminatory enforcement, generally,, § 3
Policies and procedures of authorities—,
discriminatory policies, reluctance to admit,, §§ 7, 15
examination of government officials concerning, necessity or desirability
of,, § 15
nonenforcement of law, general policy of—,
evidence showing, effect of,, § 11
normal policy, evidence showing,, § 11
selective enforcement—,
against particular class or group, policy of, testimony concerning,, § 26
lack of justifiable reasons for policy of, testimony concerning,, §§ 29, 32
neutral enforcement policies in other jurisdiction, use and greater
deterrent effect of, testimony concerning,, §§ 29, 30, 32
nonenforcement against other groups or classes, policy of, testimony
concerning,, §§ 28, 34
policy of, proof of,, § 7
use of special procedures in prosecution of defendant—,
discriminatory enforcement, as evidence of,, §§ 11, 20
Practice pointers,, § 15
Prima facie case—,
generally,, § 10
arguments for,, § 14
evidence establishing,, § 11
rebuttal of,, §§ 10, 13
Proof—,
burden of, see Burden of proof
constitutional rights, discriminatory enforcement against individual
exercising,, §§ 16– 24
difficulties of,, §§ 1, 10, 11, 14, 15
Page 4 of 99
elements of—,
discriminatory enforcement case generally,, § 5
guide and checklist,, §§ 16, 25
prima facie case,, § 10
prostitution laws, discriminatory enforcement against women,, §§ 25– 34
quantum of,, § 9
Sunday law, discriminatory enforcement of,, §§ 16– 24
Prosecutorial authorities—,
admission of improper motive—,
evidence of discriminatory enforcement, as constituting,, § 11
discriminatory enforcement, responsibility for,, § 3
examination of by defendant, necessity or desirability of,, § 15
reluctance to admit discriminatory enforcement policies,, §§ 7, 11, 15
testimony of—,
discriminatory enforcement, as showing,, § 11
prosecutor,, §§ 19– 21
Prosecutorial regularity, presumption of—,
burden of proof, as justification for,, § 9
Prostitution laws, discriminatory enforcement of—,
defense to criminal prosecution, as constituting,, §§ 2, 8
proof of,, §§ 25– 34
selective enforcement, sufficiency of evidence showing,, § 6
Purpose, see Intent to discriminate
Racial discrimination—,
rebuttal of evidence showing,, §§ 10, 13
Rebuttal,, §§ 10, 13
Regulations, discriminatory enforcement of,, § 1
Religious discrimination—,
rebuttal of evidence showing,, §§ 10, 13
Remedies and relief available,, § 4
Selective enforcement—,
generally,, § 6
permissibility of, on basis of nonarbitrary criteria,, §§ 1, 5, 8
rebuttal of,, § 13
unintentional, effect of,, § 7
Selective service law, evidence showing discriminatory enforcement of,, §§ 11,
20
Sex crimes, discriminatory enforcement of—,
defense to criminal prosecution, as constituting,, §§ 2, 8
prostitution laws, see Prostitution laws, discriminatory enforcement of
selective enforcement, sufficiency of evidence showing,, § 6
Statistical evidence—,
generally,, §§ 6– 8, 10– 12
arbitrary or invidious criteria, as proof of use of,, §§ 8, 11
discovery of,, § 12
intent to discriminate, as proof of,, § 7
prima facie case, use of to establish,, § 10
selective enforcement, as proof of,, §§ 6, 11
testimony concerning,, §§ 27, 31
Sunday laws, discriminatory enforcement of—,
defense to criminal prosecution, as constituting,, § 2
Page 5 of 99
evidence of,, § 11
investigation of defendant showing,, § 15
proof of,, §§ 16– 24
Victimless crimes, discriminatory enforcement as defense to prosecution for,, §
2
Violations by others—,
evidence of,, §§ 6, 7, 11
failure to prosecute, testimony concerning,, §§ 18, 19, 22, 28, 34
investigation by defendant showing—,
testimony concerning,, §§ 33, 34
knowledge of authorities concerning—,
police knowledge, testimony concerning,, §§ 17, 27, 28, 34
prosecutorial knowledge, testimony concerning,, § 19
requirement of,, § 7
necessity of showing,, §§ 6, 11
statistical evidence showing, testimony concerning,, § 31
testimony concerning,, §§ 17, 22, 27, 28, 33
Topic of Article:
Whether a penal law is being selectively enforced against particular individuals

or members of a particular group or class on the basis of an arbitrary or
invidious standard.
This fact question may arise in a criminal proceeding where the defendant seeks
dismissal of the charges or an acquittal on the ground that the law he is
accused of violating has been selectively and discriminatorily enforced by
prosecutorial or other government officials. The fact question may also arise in
a civil proceeding seeking injunctive relief against such discriminatory
enforcement.
I. Background
§ 1. In general
[Cumulative Supplement]
Discriminatory enforcement of a penal law has long been recognized as a

potential defense to a criminal charge.[FN1] While often recognizing the
possibility in theory of such a defense, the courts in earlier cases generally
were reluctant to confront the issue, and claims of discriminatory enforcement
usually were denied.[FN2] In recent years, however, there has been a growing
awareness of the issue of discriminatory enforcement, and the courts have given
Page 6 of 99
greater recognition to the right to nondiscriminatory enforcement of criminal
laws.[FN3]
Claims of discriminatory enforcement of criminal laws have usually been based on

the equal protection clause of the Fourteenth Amendment to the United States
Constitution, and on similar equal protection clauses contained in state
constitutions.[FN4] In federal cases, claims of discriminatory enforcement have
been based on the right to equal protection embraced within the due process
clause of the Fifth Amendment.[FN5] The courts apparently make no distinction on
the basis of the clause relied on, and equal protection and due process are in
effect interchangeable for purposes of discriminatory enforcement cases.[FN6]
To establish a denial of the constitutional requirement of equality, there must

be proof of intentional or purposeful discrimination, on the basis of some
arbitrary or invidious classification or criterion, in the enforcement of the
particular law in issue.[FN7] Mere selectivity in the enforcement of the law,
standing alone, does not constitute a denial of equal protection, since
prosecutorial authorities must necessarily exercise some discretion in
determining whom to prosecute.[FN8]
A claim of discriminatory enforcement may be based not only on discriminatory

application of a statute,[FN9] but also on discriminatory enforcement of a
municipal ordinance[FN10] or government regulations adopted pursuant to
statute.[FN11]
Although the defense of discriminatory enforcement is gaining increased

recognition, the extent of the defense is still surrounded with confusion.[FN12]
There is disagreement, for example, concerning the appropriate method of raising
the claim,[FN13] the burden and amount of proof required,[FN14] and the
availability of discovery by the party raising the claim.[FN15] A person raising
a claim of discriminatory enforcement will still face substantial difficulties
in proving the claim, and the ultimate determination in a particular case will
often depend on the resolution of disputes concerning the above or other
subsidiary issues.[FN16]
CUMULATIVE SUPPLEMENT
Cases:
Immigration proceedings: Exclusive jurisdiction provision of Illegal Immigration

Reform and Immigrant Responsibility Act (IIRIRA), under which no court may hear
any cause or claim by or on behalf of any alien arising from decision or action
by Attorney General to commence proceedings, adjudicate cases, or execute
removal orders against any alien under Immigration and Nationality Act, except
as provided in that section, deprived courts of jurisdiction over action in
which resident aliens alleged that they had been targeted for deportation
because of their affiliation with a politically unpopular group, in violation of
their constitutional rights. Immigration and Nationality Act, § 242(g), as
amended, 8 U.S.C.A. § 1252(g). Reno v. American-Arab Anti-Discrimination
Committee, 525 U.S. 471, 119 S. Ct. 936, 142 L. Ed. 2d 940 (1999); West's Key
Number Digest, Aliens 54.3(1).
Page 7 of 99
Improper selective prosecution arises when a defendant has been singled out for
prosecution when others similarly situated have not been prosecuted and the
prosecutor's reasons for doing so were impermissible. U.S. v. Graham, 146 F.3d 6
(1st Cir. 1998).
Prosecutorial discretion is not unfettered, and selectivity in the enforcement

of criminal laws is subject to constitutional constraints. U.S. v. Culliton, 328
F.3d 1074 (9th Cir. 2003); West's Key Number Digest, Criminal Law 37.10(1).
Court may consider alien's claim that immigration laws are being selectively
enforced against him in order to deport him because of his association with
certain groups since foreign policy powers which permit political branches of
government great discretion to determine which aliens to exclude from entering
country do not authorize those political branches to subject aliens who reside
here to fundamentally different First Amendment associational rights. American-
Arab Anti-Discrimination Comm. v Reno (1995, CA9 Cal) 70 F3d 1045, 95 CDOS 8608,
95 Daily Journal DAR 14893.
Defendant's due process rights are not violated by referral of his case for
federal rather than state prosecution unless defendant can prove that federal
prosecutors' decision is based on impermissible considerations even where motive
of federal prosecution is that harsher penalties are possible. United States v
Nance (1992, CA9 Or) 962 F2d 860, 92 CDOS 3270, 92 Daily Journal DAR 5145, amd
(CA9) 92 CDOS 4208, 92 Daily Journal DAR 6654.
Although a prosecutor obviously cannot base charging decisions on a defendant's

race, sex, religion, or exercise of a statutory or constitutional right, 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, generally rests entirely in his discretion. U.S. v. Curtis, 344
F.3d 1057 (10th Cir. 2003); West's Key Number Digest, Criminal Law 37.10(1).
Prisoner failed to state 42 USCA § 1983 equal protection claim based on state
statute providing for early release of some prisoners but not others in attempt
to alleviate overcrowding, where state had legitimate interest in designating
that only prisoners convicted of lesser crimes or subject to no higher than
medium security could be released early, and there was no evidence that
plaintiff prisoner was being treated differently than similarly situated
prisoners. Keeton v Oklahoma (1994, CA10 Okla) 32 F3d 451.
Although referred to for convenience as a "defense," a claim of discriminatory

prosecution goes not to the nature of the charged offense but to a defect of
constitutional dimensions in the initiation of the prosecution. When a defendant
establishes the elements of discriminatory prosecution, the action must be
dismissed even if a serious crime is charged unless the state establishes a
compelling reason for the selective enforcement. Baluyut v Superior Court (1996)
12 Cal 4th 826.
Page 8 of 99
While some discretion is inherent in prosecutorial decision making, it cannot be
without bounds, and a crime defined by statute is too open-ended when the
statute could be used to prosecute as a crime the most insignificant of
transgressions or to misuse the judicial process. Roque v State (1995, Fla) 664
So 2d 928, 20 FLW S 476.
[Top of Section]
[END OF SUPPLEMENT]
§ 1.5. Vindictive enforcement
Cases:
In order to prevail on claim of vindictive prosecution, where no presumption of

vindictiveness applied, defendant had to show that (1) the prosecutor harbored
genuine animus toward the defendant, or was prevailed upon to bring the charges
by another with animus such that the prosecutor could be considered a "stalking
horse," and (2) he would not have been prosecuted except for the animus. U.S. v.
Koh, 199 F.3d 632 (2d Cir. 1999), cert. denied, 120 S. Ct. 2235, 147 L. Ed. 2d
264 (U.S. 2000); West's Key Number Digest, Criminal Law 37.15(1).
Shifting burden of proof: When circumstances pose a likelihood of vindictiveness

on part of prosecution in bringing charges against defendant, a presumption of
vindictiveness sufficient to shift burden of justifying prosecution to
government may be warranted even if the defendant has no direct evidence of an
actual retaliatory motive. U.S. v. Wilson, 262 F.3d 305 (4th Cir. 2001); West's
Key Number Digest, Criminal Law 330.
By recognizing possibility of creating a presumption of vindictive prosecution

that shifts the burden to the government to justify its conduct, based on
evidence of circumstances that pose a realistic likelihood of vindictiveness,
not only is vindictive prosecution deterred, but also, defendants are freed of
apprehension of such a retaliatory motivation; however, such a presumption is
warranted only when circumstances warrant it for all cases of the type
presented. U.S. v. Wilson, 262 F.3d 305 (4th Cir. 2001); West's Key Number
Digest, Criminal Law 330.
Because of general presumption of prosecutorial regularity, a presumption of

vindictive prosecution, or any other type of selective prosecution, must be
supported by a showing sufficiently strong to overcome the presumption of
prosecutorial regularity. U.S. v. Wilson, 262 F.3d 305 (4th Cir. 2001); West's
Key Number Digest, Criminal Law 37.10(1).
Page 9 of 99
To establish vindictive prosecution, defendant must prove that the prosecutor
had some stake in deterring the exercise of his right to trial, and that the
prosecutor's conduct was unreasonable. U.S. v. Walls, 293 F.3d 959 (6th Cir.
2002), cert. denied, 123 S. Ct. 454 (U.S. 2002) and cert. denied, 123 S. Ct. 543
(U.S. 2002); West's Key Number Digest, Criminal Law 37.15(1).
Even if presumption of vindictiveness at resentencing, in prosecution on charges

related to use of counterfeit access devices, was warranted by imposition of a
higher loss amount, a mid-range rather than low-end sentence, and higher
restitution amount, presumption was rebutted by objective information justifying
the increased sentence; government proved, on the basis of new information, a
higher loss amount. U.S. v. Alizondo, 91 Fed. Appx. 32 (9th Cir. 2004), petition
for cert. filed (U.S. July 31, 2004); West's Key Number Digest, Mandamus 115(4).
"Vindictive enforcement" is selective enforcement intended to discourage or

punish the exercise of constitutional right, especially right to criticize
government. Heaton v. City of Princeton, 47 F. Supp. 2d 841 (W.D. Ky. 1997),
aff'd, 178 F.3d 1294 (6th Cir. 1999); West's Key Number Digest, Constitutional
Law 82(1).
To prevail on Fourteenth Amendment equal protection claim alleging punishment

for exercising constitutionally protected right, otherwise known as vindictive
enforcement claim, plaintiffs must show: (1) exercise of protected right; (2)
enforcer's stake in exercise of that right; (3) unreasonableness of enforcer's
conduct; and (4) that enforcement was initiated with intent to punish plaintiffs
for exercise of protected right. U.S.C.A. Const.Amend. 14. Hillside Productions,
Inc. v. Duchane, 249 F. Supp. 2d 880 (E.D. Mich. 2003); West's Key Number
Digest, Constitutional Law 211(3).
Defendant established defense of vindictive prosecution; "but for" defendant's

successful appeal and personal request of the U.S. Attorney in South Carolina,
government would not have prosecuted defendant. U.S.C.A. Const.Amend. 14. U.S.
v. Wilson, 120 F. Supp. 2d 550 (E.D. N.C. 2000); West's Key Number Digest,
Criminal Law 37.15(2).
A defendant claiming vindictive prosecution must show that (1) the prosecutor
harbored animus such that the prosecutor could be considered a "stalking horse,"
and (2) he would not have been prosecuted except for the animus. U.S.C.A.
Const.Amend. 14. U.S. v. Wilson, 120 F. Supp. 2d 550 (E.D. N.C. 2000); West's
Defendant bears the burden of production and persuasion in seeking to prove a

claim of actual prosecutorial vindictiveness, which means a defendant not only
must produce objective evidence that the prosecutor had some animus or
retaliatory motive, but also must produce objective evidence that tends to show
the prosecution would not have occurred absent that motive, and once this
showing is made, the prosecution must come forward with objective evidence of a
legitimate motivation for filing additional or more serious charges. People v.
Hall, 311 Ill. App. 3d 905, 244 Ill. Dec. 617, 726 N.E.2d 213 (4th Dist. 2000),
Page 10 of 99
appeal denied, 189 Ill. 2d 667, 246 Ill. Dec. 918, 731 N.E.2d 767 (2000); West's
Key Number Digest, Criminal Law 330.
Presumption of prosecutorial retaliation or vindictiveness is appropriate only

where likelihood of actual vindictiveness is veryhigh and where application of
the presumption will not unduly undermine normal prosecutorial discretion.
Commonwealth v Smith (1996) 40 Mass App 770, 667 NE2d 1160, review den 423 Mass
1108, 671 NE2d 951.
Presumption of vindictiveness: State failed to overcome presumption of

vindictiveness which arose from prosecutor's election to bring 104 additional
indictments charging aggravated felonious sexual assault after Supreme Court
reversed and remanded defendant's convictions on three original indictments,
even though prosecutor sought same penalty that defendant had received in first
trial, and despite prosecutor's claim that he determined for first time upon
remand that victim was being literal, and not figurative, when she stated that
sexual abuse was weekly event; trial judge stated that he was not bound by
defendant's prior sentence, in part because of additional charges, and
prosecutor acknowledged that in charging additional 104 counts, he relied on
information he had known prior to first trial. State v. Marti, 732 A.2d 414
(N.H. 1999); West's Key Number Digest, Criminal Law 37.15(2).
Selective vs vindictive enforcement: Example of a "true selective enforcement"

claim would be an allegation that a city does not enforce its sexually oriented
business ordinance against male owners, but consistently enforces its ordinance
against female proprietors, whereas an example of a "vindictive enforcement"
claim would be an allegation that city undertook to enforce its ordinance only
after the owner of the sexually oriented business successfully challenged the
city's nude dancing law in court. 421 Corp. v. Metropolitan Government of
Nashville and Davidson County, 36 S.W.3d 469 (Tenn. Ct. App. 2000); West's Key
Number Digest, Zoning and Planning 762.
In order to show a presumption of prosecutorial vindictiveness following a

defendant's successful appeal, the defendant must show that he was convicted, he
appealed and obtained a new trial, and that the State thereafter filed a greater
charge or additional enhancements; the burden then shifts to the prosecution to
come forward with an explanation for the charging increase that is unrelated to
the defendant's exercise of his legal right to appeal. Neal v. State, 150 S.W.3d
169 (Tex. Crim. App. 2004); West's Key Number Digest, Mandamus 37.15(1).
The prosecutor's decision to file an additional felony child neglect charge

against defendant involving her older child, after defendant's appeal of her
convictions for felony child neglect and felony murder involving her younger
child were remanded following appeal, did not violate due process and was not
presumptively vindictive; Commonwealth assistant attorney stated that the
Commonwealth focused so much on the felony homicide and neglect of younger child
that the Commonwealth failed to consider the felony neglect charge for older
child during the first trial, and defendant failed to establish actual
vindictiveness by the prosecution. U.S.C.A. Const.Amends. 5, 14. Barrett v.
Com., 268 Va. 170, 597 S.E.2d 104 (2004); West's Key Number Digest, Mandamus
37.15(2).
Page 11 of 99
Realistic likelihood of vindictiveness: As matter of law, prosecutor acted
vindictively following defendant's withdrawal of his guilty plea to various
offenses associated with series of home invasion robberies and exercised his
constitutional right to trial; record demonstrated "realistic likelihood of
vindictiveness" given that State retaliated against defendant by doubling the
number of charges against him, by increasing its sentencing recommendation ten-
fold, by distending already stacked multiple kidnapping charges against him
which were clearly incidental to robberies, and by citing no legitimate,
articulable, and objective reasons to justify its actions, with the result that
defendant's sentence far exceeded that of his more culpable codefendants.
U.S.C.A. Const.Amends. 5, 6, 14; West's RCWA Const. Art. 1, §§ 21, 22. State v.
Korum, 120 Wash. App. 686, 86 P.3d 166 (Div. 2 2004); West's Key Number Digest,
Mandamus 37.15(2).
"Prosecutorial vindictiveness" is a term of art which refers to a situation in

which the government acts against a defendant in response to the defendant's
prior exercise of constitutional or statutory rights. State v. Johnson, 223 Wis.
2d 85, 588 N.W.2d 330 (Ct. App. 1998), review granted, 225 Wis. 2d 487, 594
N.W.2d 382 (1999); West's Key Number Digest, Criminal Law 37.15(1).
[Top of Section]
[END OF SUPPLEMENT]
§ 2. Availability of defense; common situations in which defense is raised
There has been considerable disagreement concerning the extent to which proof of
discriminatory enforcement constitutes a defense to criminal charges. Some
courts have indicated that the defense is available in any criminal prosecution,
regardless of how serious the crime; other courts have opined that the defense
may be raised only in a prosecution for an offense that is relatively minor or
malum prohibitum, but not in a prosecution for a serious offense that is malum
in se; a few courts have even indicated that discriminatory enforcement is never
a valid defense to a criminal prosecution.[FN17] The trend appears to be toward
the view that the defense is available in a prosecution for any crime, even a
serious one, and that no distinction should be made between crimes that are
malum prohibitum and those that are malum in se.[FN18] Moreover, where the
discriminatory enforcement pattern involves many penal statutes, rather than one
specific statute, the claim may be raised with respect to the entire enforcement
pattern.[FN19]
Discriminatory enforcement cases have usually involved claims that some group or
class was invidiously discriminated against, and it is clear that, where the
defense is otherwise available, proof of purposeful discrimination on the basis
of race, religion, or other arbitrary classification will establish the
defense.[FN20] Thus, it has been said that invidious prosecutorial
Page 12 of 99
discrimination against a class is illegal, whether the "class consists of black
or white, Jew or Catholic, Irishman or Japanese, United Farm Worker or
Teamster."[FN21] Moreover, although it has sometimes been argued that
discrimination on the basis of class membership is a prerequisite to
availability of the defense, the generally accepted view is that discrimination
against an individual, as well as a class, is also prohibited and will give rise
to the defense.[FN22]
Even in jurisdictions where discriminatory enforcement is available as a defense

to any criminal charge, no matter how serious, the defense is rarely raised in
prosecutions for serious offenses, since statutes governing those crimes are in
fact normally enforced. Thus, claims of discriminatory enforcement usually
involve laws that are outdated or that cover relatively trivial conduct,
including victimless and consensual crimes.[FN23] The defense of discriminatory
enforcement has often been raised in prosecutions for violations of gambling
laws, Sunday blue laws or closing laws, and similar laws.[FN24] The great danger
with respect to such laws is that violators who are members of unpopular groups
or who are personally disliked by the police or prosecutorial authorities will
be prosecuted, while other violators of the same laws will not be.[FN25]
Many cases have involved claims that prosecutorial authorities intentionally

discriminated against people on the basis of their exercise of first amendment
or other constitutional rights, and discrimination on such a basis is especially
vulnerable.[FN26] Any discrimination on the basis of racial considerations is
also especially subject to attack.[FN27]
In recent years the defense of discriminatory enforcement has been raised in a

variety of situations. Thus, it has been held that selective enforcement against
members or supporters of a particular labor union constitutes a violation of
equal protection.[FN28] In several recent cases laws regulating prostitution and
other sex crimes have been attacked on the ground that the laws, either on their
face or as applied, unconstitutionally discriminate against women. While the
courts have generally indicated that discriminatory enforcement is available as
a defense to a prosecution for prostitution or a related crime,[FN29] at least
one court has indicated otherwise.[FN30]
Cases:
Property owners could not establish that city officials engaged in selective
enforcement of city building and fire codes against them, for purpose of § 1983
claim, absent showing that they belonged to an identifiable group, such as a
particular race or religion, or a group exercising constitutional rights, and
that they were targeted for law enforcement action as a result of that group
status. 42 U.S.C.A. § 1983. Banks v. City of Whitehall, 344 F.3d 550, 2003 FED
App. 0340P (6th Cir. 2003); West's Key Number Digest, Civil Rights 1015.
Defendant was not victim of selective prosecution for resisting arrest and
obstructing governmental administration arising from incident in which he became
embroiled in argument with pizza shop employees after they refused to serve his
Page 13 of 99
brother, where evidence showed that pizza shop employees immediately complied
with police officers' order to stop fighting and that sole basis for defendant's
prosecution was his subsequent attack on police officers. People v England
(1993, 2d Dept) 191 AD2d 706, 595 NYS2d 793.
Prosecutor who, on his own motion, had previously dismissed several other cases
for alleged speeding violations in same geographic area where defendant was
charged with speeding violation, because speed sign was obliterated by foliage,
acted arbitrarily and capriciously, in violation of defendant's right to equal
protection under both Fourteenth Amendment and CLS NY Const Art I § 11 in
failing to afford defendant same treatment extended to other defendants in same
circumstances by opposing his motion to dismiss charge. In any event prosecutor
was collaterally estopped to deny sign obliteration in defendant's case,
necessitating dismissal of charge. People v Fox (1993, Just Ct) 157 Misc 2d 238,
596 NYS2d 984.
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[END OF SUPPLEMENT]
§ 2.3. Discrimination in tender of plea bargain
Cases:
Fact that defendants who plead generally receive more lenient treatment, or at
least a government recommendation of more lenient treatment than co-defendants
who go to trial, does not in and of itself constitute an unconstitutional burden
on defendant's right to go to trial and prove his case. U.S.C.A. Const.Amend. 6.
U.S. v. Yeje-Cabrera, 430 F.3d 1 (1st Cir. 2005); West's Key Number Digest,
Sentencing and Punishment 115(3).
Defendants who alleged that government committed equal protection violations by

treating male drug carriers more harshly in plea bargaining than similarly
situated females failed to carry their burden of showing intentional
discrimination after government rebutted prima facie case of intentional
discrimination by offering gender-neutral explanations for its plea bargaining
decisions. United States v Redondo-Lemos (1994, CA9 Ariz) 27 F3d 439, 94 CDOS
4673.
Not only is a presumption of prosecutorial vindictiveness inapplicable to the

"give-and-take" of plea negotiations, but even a showing of actual
vindictiveness does not necessarily warrant dismissal of the indictment. U.S. v.
Page 14 of 99
Sarracino, 340 F.3d 1148, 62 Fed. R. Evid. Serv. 992 (10th Cir. 2003); West's
Record did not refute presumption, arising from judge's imposition of harsher
sentence following trial than was contemplated in failed plea negotiations in
which judge was involved, that sentence was vindictive; record reflected that
judge was aware of defendant's criminal record prior to trial and referred to
defendant's previous violations of probation, as well as his previous juvenile
record, while discussing state's plea offer. Harris v. State, 845 So. 2d 329
(Fla. Dist. Ct. App. 2d Dist. 2003); West's Key Number Digest, Sentencing and
Punishment 115(3).
Presumptive vindictiveness: Term "vindictive," in context of presumption of

vindictiveness arising when a judge who was involved in failed plea negotiations
imposes a harsher sentence following trial than was contemplated during such
negotiations, is simply a term of art which expresses the legal effect of a
given objective course of action and does not imply any personal or subjective
animosity between the court and the defendant. Harris v. State, 845 So. 2d 329
(Fla. Dist. Ct. App. 2d Dist. 2003); West's Key Number Digest, Sentencing and
Punishment 115(3).
The defendant's decision to go to trial rather than to accept a plea bargain

could not support imposition of a harsher sentence, where the defendant was
convicted of maintaining a gambling house, and the trial court held this against
the defendant by imposing a harsher sentence, after commenting at the sentencing
hearing that the defendant had shown no remorse by going to trial and trying to
"hornswoggle" the jury. Cavallaro v State (1994, Fla App D3) 647 So 2d 1006, 20
FLW D 3.
Defendant's constitutional right to equal protection was not denied by district

attorney's policy not to accept plea to less than top count of indictment since
(1) offer of plea bargain is not constitutional right but matter of
prosecutorial discretion, and (2) there was rational basis for different plea-
bargaining policies in different counties based on differing caseloads and
staffing in different areas of state. People v Cohen (1992, 3d Dept) 186 AD2d
843, 588 NYS2d 211.
Prosecutor's actions in dismissing original charge of felony assault with a

device substantially similar to a firearm, after defendant refused to accept
plea bargain, then recharging defendant with this offense, and with assault with
a deadly weapon, did not constitute "vindictive prosecution," where there was no
evidence of actual vindictiveness or any circumstances giving rise to a
presumption of misconduct, prosecutor warned that she intended to bring
additional charge if defendant refused plea bargain, and reasons for bringing
charge did not reflect any improper considerations, such as race or religion.
R.I. Gen. Laws, 1956, § 11-5-2.1; Sup.Ct.Rules, Art. I, Rule 48(a). State v.
Tilson, 794 A.2d 465 (R.I. 2002); West's Key Number Digest, Criminal Law
37.10(2).
[Top of Section]
Page 15 of 99
[END OF SUPPLEMENT]
§ 2.5. Discrimination in selection of participants for pre-trial diversion

program
Cases:
Prosecutor's decision not to admit stolen-property defendant to diversion

program, being analogous to decision whether toprosecute, was absolutely immune
from claim under 42 USCA § 1983 that prosecutor wrongfully refused admission.
Davis v Grusemeyer (1993, CA3 NJ) 996 F2d 617, RICO Bus Disp Guide (CCH) ¶8321.
[Top of Section]
[END OF SUPPLEMENT]
§ 2.7. Death penalty discrimination claims
Cases:
Black defendant charged with capital murder, in connection with killing of two
whites and one black in coffee shop, failed to present colorable claim of
selective prosecution under Federal Death Penalty Act (FDPA) sufficient to
support discovery request seeking corroborative information, when defendant
stated that total of five persons were killed in police precinct where killings
occurred and majority of white population of District of Columbia resided, with
federal prosecution occurring in 60% of cases, while there were 301 homicides in
District generally with only one other request for death penalty. 18 U.S.C.A. §§
3591 et seq. U.S. v. Cooper, 91 F. Supp. 2d 90 (D.D.C. 2000); West's Key Number
Digest, Criminal Law 37.10(2).
Defendant failed to produce even some evidence that the decision to seek the
death penalty in his case was made with discriminatory purpose or that it had a
discriminatory effect, as required to entitle him to discovery regarding the
decision-making process used by the Justice Department and the Attorney General;
Page 16 of 99
while statistics indicated that the Attorney General decided to seek the death
penalty against 30% of the white defendants charged under a federal arson
statute, and against 20% of the non-white defendants charged with the same
offense, those statistics were based on only 15 defendants. U.S.C.A.
Const.Amend. 5; Fed.Rules Cr.Proc.Rule 16(a)(1)(C), 18 U.S.C.A.. U.S. v. Minerd,
182 F. Supp. 2d 459 (W.D. Pa. 2002); West's Key Number Digest, Criminal Law
37.10(1).
Trial court did not err in refusing to allow defendant to call district attorney
general and assistant prosecutor as witnesses on issue of state's abuse of
discretion in pursuing death penalty, where defendant did not allege facts to
show how his constitutional rights were violated. Cooper v State (1992, Tenn
Crim) 847 SW2d 521, post-conviction proceeding (Tenn) 849 SW2d 744.
[Top of Section]
[END OF SUPPLEMENT]
§ 3. Persons or officials responsible for discriminatory enforcement
Although criminal laws may be discriminatorily enforced by any person connected

with the detection and prosecution of crime, problems of discriminatory
enforcement most often arise with respect to the enforcement of the law by the
police.[FN31] In light of the impossibility of total enforcement of all criminal
laws, police departments of necessity exercise discretion in enforcement. Such
selective enforcement occurs not only pursuant to departmental policy, but also
on the basis of a police officer's individual decision in a given
situation.[FN32] Since a prosecutor's decision to prosecute a given case is
often merely a reaction to a complaint filed by the police, it is not unusual
that many discriminatory enforcement claims are directed at the police.[FN33]
While some courts have indicated that a claim of discriminatory enforcement must
be based on the actions of the prosecutor, most courts have rejected this view,
recognizing that the police or other investigative agencies may be responsible
for discrimination and that the prosecutor is answerable for those who prepare
or assist in the preparation of the case.[FN34]
Although discriminatory enforcement claims therefore are most often based on the
actions of the police or prosecutors, such claims may also be based on the
actions of other government officials who are not normally involved in the
prosecutorial decision-making process. In an appropriate case a claim of
discriminatory enforcement may be premised on the actions of judges,[FN35] or on
the discriminatory application of an ordinance by a city council or other local
legislative body.[FN36] Moreover, a claim of discriminatory enforcement may also
be based on the actions of county officials generally, including the prosecutor,
the sheriff, and other law enforcement agents.[FN37]
Page 17 of 99
Finally, many penal laws are either generally unenforced or only passively
enforced, and decisions to prosecute are sometimes merely reactions to
complaints by private citizens.[FN38] It has been held that a policy of
enforcement only on complaint invites discrimination by one group against
another, and that, where violations of a generally unenforced statute were
prosecuted only at the instance of a union for its own private purposes, the
actions of the union were attributable to the state and discriminatory
enforcement was established.[FN39]
Cases:
The United States Attorney is the representative not of an ordinary party to a

controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all, and whose interest, therefore, in
a criminal prosecution is not that it shall win a case, but that justice shall
be done. Strickler v. Greene, 119 S. Ct. 1936 (U.S. 1999); West's Key Number
Digest, Attorney General 6.
[Top of Section]
[END OF SUPPLEMENT]
§ 4. Remedies and relief available
There is considerable disagreement concerning the appropriate procedure for

raising a claim of discriminatory enforcement, as well as disagreement
concerning the extent of the relief available on a finding of discriminatory
enforcement.[FN40]
A claim of discriminatory enforcement is usually raised either in connection

with an attempt to exonerate a defendant in a pending criminal prosecution, or
in an attempt to secure injunctive relief against discriminatory enforcement.
However, discriminatory enforcement has also been raised as a defense to a
proceeding to enjoin violations of the law, and it has been indicated that
officials who discriminatorily enforce the law do not have clean hands and may
therefore be denied injunctive relief in such a situation, even though their
conduct does not amount to a constitutional violation.[FN41] Attempts have also
been made to secure class relief from discriminatory enforcement, but
substantial difficulties have been encountered in such attempts.[FN42]
Page 18 of 99
Where discriminatory enforcement is recognized as a defense to a criminal
prosecution, some courts have held that the appropriate procedure is to raise
the defense by means of a pretrial motion to dismiss or to quash the indictment,
while others have held that the contention should be raised as a defense at the
trial itself.[FN43] The trend appears to be toward the view that such a claim is
more appropriately raised by means of pretrial motion, on which the court may
hold a hearing and take evidence if necessary.[FN44]
There appears to be even more of a divergence of opinion with respect to the

propriety of granting injunctive relief against discriminatory prosecution.
Courts denying injunctive relief have sometimes expressed the fear that if one
person is granted an injunction against discriminatory enforcement of a criminal
law or ordinance, others will seek the same relief, and the authorities will
effectively be prevented from ever enforcing an otherwise valid law.[FN45]
Moreover, some courts have denied injunctions on the basis of principles
generally applicable to injunctive relief, such as the doctrine of clean hands,
the availability of an adequate remedy at law, and the principle that injunctive
relief will not be granted to restrain enforcement of a criminal law.[FN46]
However, other courts have held that injunctive relief is appropriate to prevent
or restrain discriminatory enforcement of a criminal law, such courts often
noting that an injunction can be framed in such a manner that it does not
prevent all enforcement of a valid law, but merely prohibits discriminatory
enforcement, thereby permitting nondiscriminatory prosecution of subsequent
offenders if the prosecutorial authorities choose to do so.[FN47]
It has been noted that when the criminal laws are being discriminatorily
enforced against a class, individual relief is not an adequate remedy for the
entire class, and class relief is necessary. Although there are sometimes great
obstacles to effective class relief,[FN48] it has been held that in an
appropriate case injunctive relief may be granted to prevent future
discriminatory enforcement against members of the class.[FN49]
A defendant who prevails on a claim of discriminatory enforcement is not

necessarily immune from future prosecution. If the prosecutorial authorities
begin applying the law in question impartially, a defendant clearly may be
prosecuted if he commits the crime again.[FN50] Moreover, if a defendant secures
dismissal by means of a pretrial motion, double jeopardy may not attach, and
subsequent equal enforcement of the law may allow the defendant to be prosecuted
again for the original offense.[FN51] However, in a case in which the defendant
raises discriminatory prosecution as an affirmative defense at the trial itself,
an acquittal would preclude further prosecution for the same occurrence on
double jeopardy grounds.[FN52]
Cases:
First Amendment retaliation action based upon claim of selective prosecution

need not be grounded in contention that similarly situated individuals of
differing religious or political viewpoints, as opposed to less vocal
Page 19 of 99
individuals of the same persuasion, had not been prosecuted, but, rather, one
may base action for selective prosecution on government's failure to prosecute
individuals of the same viewpoint as person arrested if government's motivation
was an unconstitutional one, for example, if reason for selecting particular
person charged was to chill exercise of that person's First Amendment rights.
U.S.C.A. Const.Amend. 1. U.S. v. Vazquez, 145 F.3d 74 (2d Cir. 1998).
State prosecutor was entitled to absolute immunity for decision not to prosecute
alleged gang leader for death threat against robbery witness who later was shot
and killed by gang members, since decision whether to prosecute is absolutely
privileged, but prosecutor was entitled only to qualified immunity against
claims that he exposed witness to unreasonable risk by forcing face-to-face
identification and that he failed to provide police protection to preclude fatal
attack on witness, since last two claims did not arise from traditional
prosecutorial functions. Ying Jing Gan v New York (1993, CA2) 996 F2d 522.
Failure to raise selective prosecution claim before trial was not excused by
fact that trial counsel, who had been serving as cocounsel in defendant's case,
was not officially appointed by court until two days before trial. United States
v Bryant (1993, CA10 Utah) 5 F3d 474.
Selective prosecution claim is not a defense on the merits to a criminal charge

itself, but an independent assertion that the prosecutor has brought the charge
for reasons forbidden by the Constitution. U.S.C.A. Const.Amend. 5. U.S. v.
Strickland, 113 F. Supp. 2d 1272 (S.D. Ind. 2000); West's Key Number Digest,
Plaintiff's claim that he would be subject to selective enforcement of Kansas

criminal defamation statute in future was pure speculation, so that plaintiff
was not entitled to injunction preventing state district attorney from future
selective prosecution of plaintiff under statute. Phelps v Hamilton (1996, DC
Kan) 934 F Supp 373.
County attorney's conduct in refiling charges that were dismissed in preliminary

hearing two hours earlier, when it was uncertain whether additional evidence
would become available, violated rule prohibiting a prosecutor from prosecuting
a charge not supported by probable cause, and was conduct prejudicial to
administration of justice. Sup.Ct.Rules, Rule 226, Rules of Prof.Conduct, Rules
3.8(a), 8.4(d). In re Swarts, 30 P.3d 1011 (Kan. 2001); West's Key Number
Digest, Attorney and Client 42.
Claim of selective enforcement is not an affirmative defense to charge of

violating zoning ordinance, to be determined together with the issue of guilt by
the trier of fact, but, rather, should be addressed to the court as a motion to
dismiss the accusatory instrument on constitutional grounds, although defendant,
if he be so advised, may raise issue by a post-judgment motion. McKinney's CPLR
§ 440.10, subd. 1(h). People v. Walker, 191 Misc. 2d 522, 744 N.Y.S.2d 285 (App.
Term 2002); West's Key Number Digest, Zoning and Planning 801.
Page 20 of 99
Although a selective-prosecution claim is not a defense on the merits to the
criminal charge itself, a defendant may raise it as an independent assertion
that the prosecutor has brought the charge for reasons forbidden by the
Constitution. State v. LaMar, 95 Ohio St. 3d 181, 2002 -Ohio- 2128, 767 N.E.2d
166 (2002), cert. denied, 2002 WL 31308791 (U.S. 2002); West's Key Number
[Top of Section]
[END OF SUPPLEMENT]
§ 4.3. Remedies--Under Hyde Amendment
Cases:
Government's position in an unsuccessful criminal prosecution is "vexatious," as

will permit a prevailing defendant to recover attorney fees and expenses under
Hyde Amendment, if it is without reasonable or probable cause or excuse.
Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 1998, § 617, 18 U.S.C.A. § 3006A note. U.S. v. True, 250
F.3d 410 (6th Cir. 2001); West's Key Number Digest, Costs 308.
Hyde Amendment, which authorizes reasonable attorney fees and litigation

expenses to a prevailing party in a criminal case if a court finds that the
government's position was vexatious, frivolous, or in bad faith, incorporates
the procedures and limitations provided for awards of attorney fees under Equal
Access to Justice Act (EAJA). Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriations Act, 1998, § 617, 18 U.S.C.A. §
3006A, note; 28 U.S.C.A. § 2412. U.S. v. True, 250 F.3d 410 (6th Cir. 2001);
West's Key Number Digest, Costs 308.
Bad faith finding for award of attorneys' fees: "Bad faith" on part of
government in taking position in an unsuccessful criminal prosecution, as will
permit a prevailing defendant to recover attorney fees and expenses under Hyde
Amendment, involves not simply bad judgment or negligence, but rather, implies
the conscious doing of a wrong because of dishonest purpose or moral obliquity;
bad faith contemplates a state of mind affirmatively operating with furtive
design or ill will. Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act, 1998, § 617, 18 U.S.C.A. § 3006A note.
U.S. v. True, 250 F.3d 410 (6th Cir. 2001); West's Key Number Digest, Costs 308.
Vexatiousness: "Vexatious," as used in provision of Hyde Amendment which allows

a criminal defendant to recover attorney fees and other expenses if position of
Page 21 of 99
the United States was vexatious, has both a subjective and objective component;
government's position is "vexatious" if it has a subjective element of
maliciousness, or an intent to harass, and if it is objectively deficient. 18
U.S.C.A. § 3006A, note. U.S. v. Sherburne, 249 F.3d 1121 (9th Cir. 2001); West's
Key Number Digest, Costs 308.
Federal defendants who sought recovery of reasonable attorney's fees and other
litigation expenses following prosecution, pursuant to Hyde Amendment, were not
subject to separate provision within Equal Access to Justice Act (EAJA) limiting
fee recovery to $125 per hour, since exception to EAJA cap in instances of "bad
faith" prosecution was consistent with Hyde Amendment's granting of fees and
expenses in cases of prosecution that was "vexatious, frivolous or in bad
faith"; section of EAJA imposing fee cap in instances of "substantially
unjustified" litigation was inapplicable, notwithstanding Hyde Amendment's
adoption of general procedures and limitations of EAJA. 28 U.S.C.A. § 2412. U.S.
v. Aisenberg, 247 F. Supp. 2d 1272 (M.D. Fla. 2003); West's Key Number Digest,
Costs 308.
[Top of Section]
[END OF SUPPLEMENT]
§ 4.5. Remedies--Under Civil Rights Acts
Cases:
Cropduster prosecuted for violation of state pesticide lawsfailed to state First

Amendment claim under 42 USCA § 1983, where cropduster alleged that state
Agriculture Department targeted him for prosecution because he spoke up
regarding his treatment by Department, but where cropduster failed to satisfy
requirement that prosecution terminate in his favor. Johnson v Louisiana Dep't
of Agric. (1994, CA5 La) 18 F3d 318.
Complaint alleging that city, county, district attorney, child abuse

investigation specialist and others had improper motives resulting in
prosecution of preschool owner for child abuse despite lack of factual basis for
prosecution failed to state 42 USCA § 1983 action, but remand would be permitted
to allow preschool owner to amend allegations to show defendants conspired under
color of state law to subject preschool owner to injuries resulting from
unfounded prosecution. Buckey v County of Los Angeles (1992, CA9 Cal) 968 F2d
791, 92 CDOS 5941, 92 Daily Journal DAR 9219, petition for certiorari filed (Sep
28, 1992).
Page 22 of 99
[Top of Section]
[END OF SUPPLEMENT]
§ 5. Elements of discriminatory enforcement--In general
There is general agreement as to the essential elements of a claim of

discriminatory enforcement, which elements must be shown regardless of the
manner in which the claim is raised.[FN53] Although these elements are variously
stated, the party claiming discriminatory enforcement generally must prove that
there was in fact some selectivity in enforcement, that the selectivity was
intentional, and that the selectivity was based on some invidious or
unjustifiable standard.[FN54]
All three elements must be present to establish discriminatory enforcement. The

mere fact that not all violators of a law are prosecuted is not sufficient,
since failure to prosecute everyone may be due to mere laxity in enforcement or
errors of judgment.[FN55] Nor is proof of intentional selectivity sufficient,
since the courts have held that police and prosecutors must necessarily exercise
discretion in enforcement of the law, and prosecutorial selectivity is not
arbitrary if based on legitimate criteria.[FN56] Thus, it has been noted that
there is an important distinction between deliberate invidious discrimination
and nonarbitrary selective enforcement,[FN57] and the mere fact that violators
of the same law are treated differently does not amount to a denial of equal
protection.[FN58]
While some courts have required a showing of a fixed and continuous policy of
discriminatory enforcement before they will find a violation of equal
protection,[FN59] the general view appears to be that the discrimination need
not be systematic or of long duration, and that one act of discriminatory
enforcement, especially if directed at an individual rather than a class, is
sufficient to sustain a claim.[FN60]
Cases:
In action under Civil Rights Act, 42 USCA § 1983, defendant's claim of selective
prosecution was not supported by evidence where defendant failed to demonstrate
that decision to prosecute was intentional form of discrimination against him,
that others similarly situated had not been prosecuted, and that decision to
prosecute had been motivated by impermissible reason. Willhauck v Halpin (1991,
CA1 Mass) 953 F2d 689.
Page 23 of 99
Defendant failed to establish vindictive or selective prosecution on drug charge
based on defendant's prior challenge to earlier governmental attempt to forfeit
his vehicle where there was no direct evidence of actual vindictiveness by
prosecutor even though defendant's forfeiture claim brought his unprosecuted
activities to prosecutor's attention. United States v White (1992, CA2 NY) 972
F2d 16.
It has also been held that selectivity may be based in part on the ground of
vocal opposition to the law; thus, vigorous prosecution of tax protestors for
violations of tax laws held to demonstrate a legitimate interest in punishing
flagrant violators and deterring other violations. United States v Johnson (CA5
Tex) 577 F2d 1304, reh den (CA5 Tex) 584 F2d 389 (the court also noting that tax
laws are generally enforced to the extent allowed by prosecutorial resources).
The decision to prosecute may not be intentionally based upon an improper

criterion such as race or religion, nor on the exercise of protected statutory
and constitutional rights. U.S. v. Sarracino, 340 F.3d 1148, 62 Fed. R. Evid.
Serv. 992 (10th Cir. 2003); West's Key Number Digest, Criminal Law 37.10(1).
There is no constitutional right to have law go unenforced against you, even if

you are first person against whom it is enforced, and even if you think, or can
prove, that you are not as culpable as some others who have gone unpunished.
Heaton v. City of Princeton, 47 F. Supp. 2d 841 (W.D. Ky. 1997), aff'd, 178 F.3d
1294 (6th Cir. 1999); West's Key Number Digest, Constitutional Law 82(6.1).
In prosecution for possession of cocaine, defendant failed to establish defense

of discriminatory prosecution, based on allegations that police officer failed
to report drug activities of his friends or his own alleged drug activity, where
defendant failed to allege that prosecutor, by words or conduct, either
explicitly or implicitly, authorized police officers to engage in alleged
conduct claimed by defendant. People v Kurz (1992, Colo App) 847 P2d 194.
Defendant was convicted of possession and transportation of narcotics with

intent to sell and possession of a weapon in a motor vehicle. He appealed. One
of the issues on appeal was whether the prosecution violated due process and
equal protection rights under the state and federal constitutions. The supreme
court affirmed, finding defendant's selective prosecution claim meritless.
Defendant failed to support his claim with any reported cases holding that
incidental discrepancies in prosecutions between judicial divisions within
states, arising from the exercise of prosecutorial discretion constituted
"invidious discrimination." State v Delossantos (1989) 211 Conn 258, 559 A2d
164, cert den (US) 107 L Ed 2d 142, 110 S Ct 188.
Defendant, former police chief of commuter railroad company who was indicted for
his alleged improper use of state computer system containing individual criminal
histories, was not entitled to dismissal of indictment for invidious selective
prosecution since (1) statutes under which defendant was charged were only
recently enacted, (2) another police chief who apparently misused computer was
permitted to resign to avoid prosecution, but defendant refused such offer, (3)
prosecutor stated that defendant was being prosecuted because lengthy
investigation revealed that he had abused his authority and engaged in repeated
Page 24 of 99
serious violations of law, and (4) defendant failed to show that alleged
selectiveapplication of law was deliberately based on racial, religious or other
impermissible standard. People v Esposito (1989) 144 Misc 2d 919, 545 NYS2d 468,
later proceeding 144 Misc 2d 1085, 545 NYS2d 673, later proceeding (Sup) 146
Misc 2d 847, 553 NYS2d 612 and affd (1st Dept) 160 AD2d 378, 554 NYS2d 16, app
den 76 NY2d 787, 559 NYS2d 992, 559 NE2d 686.
Prosecution of high school principal for criminal possession of controlled

substance was not selective under county's formal policy of considering
defendant's position in community as relevant factor in plea negotiations, where
there is no constitutional right to plea bargain; defendant's status in
community did not constitute invidious classification, where defendant, as
school principal, occupied position of public trust, commanding respect from
students and community, and carrying responsibility of teaching children dangers
of drug abuse, and legitimate interest was thus served in prosecution of
defendant in promoting more general compliance with law; limited resources of
police department resulted in arrest of only three of twenty-five persons
allegedly involved in drug transactions; and defendant did not allege that his
identity was known to arresting officers. People v Barnwell (1989) 143 Misc 2d
922, 541 NYS2d 664.
Presumption of retaliation: Evidence that solicitor nol prossed four charges

against defendant before his first trial, that after his conviction for a charge
that had not been nol prossed the defendant was successful on his application
for post-conviction relief (PCR), that solicitor resurrected the four charges
after the successful PCR application, that 17 years passed between the two
trials, and that no new evidence had been discovered, created presumption of
prosecutorial retaliation for exercising right to appeal. Patrick v. State, 349
S.C. 203, 562 S.E.2d 609 (2002); West's Key Number Digest, Criminal Law
37.15(1).
[Top of Section]
[END OF SUPPLEMENT]
§ 6. Elements of discriminatory enforcement--Requirement of selectivity
To prove actual selectivity, a defendant basically must prove that, out of the
total number of people who violated a given law or laws, only a few were
prosecuted. In other words, the defendant must show both the relevant population
of violators and that not all of the violators are prosecuted.[FN61]
While in some cases the element of selectivity is relatively easy to prove,

other cases may present difficulties. For example, in a case challenging
discriminatory enforcement of a law prohibiting solicitation for prostitution,
it was held that this element was not proved, since the evidence did not show
Page 25 of 99
the number of men who committed the crime.[FN62] Similarly, in a case dealing
with a charge of sexual perversion, it was pointed out that the defendant
alleging discriminatory enforcement must show a persistent failure to prosecute
both men and women involved in prostitution.[FN63]
Selective enforcement usually can be proved either by evidence showing other

specific violators or violations of the statute without prosecution, or by
statistical evidence showing very few prosecutions for violations of the
particular law or laws.[FN64] While evidence of failure to prosecute other
violators by itself merely establishes selectivity, and does not show
intentional discrimination, such evidence is relevant on the issue of
intentional discrimination when offered with other evidence.[FN65]
Cases:
In prosecution under 18 USCA § 1955, prohibiting illegal gambling businesses, in

which court denied interim hearing on whether indictment should be dismissed
before trial because of alleged selective prosecution, defendant could not
prevail on selective prosecution claim unless he showed that law in question was
generally not being enforced against others similarly situated. United States v
Cyprian (1991, ND Ind) 756 F Supp 388.
[Top of Section]
[END OF SUPPLEMENT]
§ 7. Elements of discriminatory enforcement--Requirement of purpose or intent to

discriminate
It is important to note that selectivity in enforcement may be either

intentional or unintentional, and that unintentional selectivity does not
violate equal protection. Thus, it is widely agreed that selective enforcement
that results from mere mistake, errors in judgment, or laxity or passivity in
enforcement is insufficient to show a constitutional violation.[FN66]
To prove intentional selectivity, a person claiming discriminatory enforcement

generally must show that the prosecutor, the police, or other responsible
government representatives knew of the existence of other persons who had
violated the law, and that a conscious decision was made to prosecute only
certain of the known violators.[FN67] The relative ease or difficulty of proving
intentional selectivity varies from case to case. Since usually there is either
no stated policy of selective enforcement, or no enforcement official will admit
to the existence of such a policy, a defendant may have great difficulty proving
Page 26 of 99
intentional selectivity in a case where the selectivity is based on subtle
criteria, as opposed to a situation in which the criteria of selectivity are
more obvious.[FN68]
Deliberate selectivity may in some cases appear on the face of the action taken
by the prosecutor, but more often is shown either by direct evidence indicating
prosecutorial selectivity on the basis of certain criteria, or by statistical
evidence indicating enforcement against certain classes or persons possessing
certain characteristics, but not against other classes or persons.[FN69]
Generally, if the defendant can prove a pattern of enforcement indicating
policies of selectivity, the requirement of deliberateness can be met, and it is
unnecessary to actually prove specific knowledge and intent on the part of
prosecutorial authorities or police.[FN70] Thus, evidence showing prosecution of
only a few violators, coupled with evidence indicating that the information-
gathering system of the authorities should have revealed other offenders, was
held sufficient to establish intentional selective prosecution, even though
authorities disclaimed knowledge of any other offenders.[FN71]
Cases:
The government's policy of passive enforcement of the selective service laws,

under which it prosecuted only those nonregistrants who reported themselves or
were reported by others, did not constitute impermissible selective enforcement.
Even if the policy had a discriminatory effect, there was no showing that there
was a discriminatory intent. Wayte v United States (1985, US) 84 L Ed 2d 547,
105 S Ct 1524.
Police officer's stop and detention of African-American bicyclists did not

amount to selective enforcement based on race, in violation of Equal Protection
Clause, even if shift commander had informed city manager that his "instructions
to officers were to investigate any black youths riding through our
subdivisions," and officers had stopped bicyclists on other occasions, where
there was no evidence that officer was aware of any such instruction, there was
no evidence that individuals of different races received preferential treatment,
and officer targeted bicyclists based on information that "two black males had
came [sic] over and stole bikes." U.S.C.A. Const.Amend. 14; 42 U.S.C.A. §§ 1981,
1983. King v. City of Eastpointe, 86 Fed. Appx. 790 (6th Cir. 2003); West's Key
Number Digest, Mandamus 215.2.
In prosecution under 21 USCA § 841(a)(1) for possessing with intent to deliver,

and distributing, cocaine-base, court would deny defendant's motion to dismiss
indictment, notwithstanding defendant's allegation of discriminatory
prosecution, where defendant failed to demonstrate singling out for prosecution
on cocaine base charges while others similarly situated were not, that
government in determining whether to prosecute on cocaine-base charges rather
than cocaine charges was motivated by race, or that government made decision to
prosecute defendant because of his race; police officers testified credibly that
race had not been consideration in making any decision regarding arrest,
charging, or prosecution of defendant, and officers offered three legitimate
Page 27 of 99
reasons for having brought prosecution against defendant in federal court rather
than in state court. United States v Johnson (1991, DC Colo) 765 F Supp 658.
Defendant failed to establish his claim that because of his race he was victim
of selective enforcement of gambling statute following raid of illegal game
parlor, since defendant failed to allege that government singled out black
persons for prosecution. Dix v State (1994, Ind App) 639 NE2d 363, reh den (Nov
3, 1994).
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[END OF SUPPLEMENT]
§ 8. Elements of discriminatory enforcement--Requirement of arbitrary or

invidious standard of enforcement
In addition to proving intentionally selective enforcement, the defendant must

also show that the selectivity was based on some arbitrary or invidious
standard. Since there are insufficient resources for total enforcement of all
criminal laws, some selectivity is considered an administrative necessity.[FN72]
Selective prosecution based on legitimate standards of law enforcement is
permissible, and the courts have traditionally given great deference to the
broad discretion vested in police and prosecutors in determining whom to
prosecute.[FN73]
A person claiming discriminatory enforcement therefore must present sufficient

evidence to show intentional discrimination that is deliberately based on some
unjustifiable standard.[FN74] The requirement of invidiousness has also been
stated negatively, requiring a claimant to show that there is no justifiable
standard by which those persons prosecuted could reasonably be distinguished
from those not prosecuted.[FN75] In proving the use of an unjustifiable
standard, it is unclear whether the defendant must show only that the
prosecutorial decision was based on such a standard, or whether he must also
show that the prosecutorial authorities knew the standard was
unjustifiable.[FN76]
Certain criteria of enforcement are clearly arbitrary or invidious and, if shown

to exist, constitute discriminatory enforcement. Thus, it is uniformly
recognized that use of criteria such as race or religion is
unconstitutional,[FN77] as are selection criteria based on a person's exercise
of protected First Amendment or other constitutional rights.[FN78] Moreover,
criteria such as race, religion, or cultural background are often relatively
easy to identify, making proof of discriminatory enforcement on the basis of
such criteria somewhat easier to establish.[FN79]
Page 28 of 99
In cases where other standards of selectivity are shown, however, there is no
clear analytic framework for determining whether such standards are arbitrary or
unjustifiable.[FN80] Although seldom defined in the context of discriminatory
prosecution, an arbitrary or unjustifiable criterion is one that has no rational
relationship to the purpose of the penal law allegedly violated, and the issue
of whether a particular criterion is arbitrary is generally a mixed question of
fact and law.[FN81] One test often used to determine whether certain criteria
are arbitrary or permissible is whether the legislature could have used such
criteria in enacting the statute.[FN82]
Generally, the element of invidiousness is decided on the basis of the evidence

presented on the other elements, and often includes statistical evidence showing
enforcement of the law against certain groups or classes, but not against
others.[FN83] In cases that are close on the issue of invidiousness, therefore,
the result might well turn on the strength of the showing with respect to the
elements of selectivity and intent. For example, while unequal enforcement of
prostitution and other sex crime laws against women has often been found to
constitute discriminatory enforcement,[FN84] it has also been held that a police
department's method of operation for prostitution control, although directed
almost solely at women, was a rational approach and constituted reasonable law
enforcement, the court noting a lack of evidence as to how many men committed
the crime of solicitation and that it appeared probable more women did so than
men.[FN85] In another case the court indicated that, while selective enforcement
of sex crime laws against women might constitute discriminatory enforcement, the
state might justify such selectivity with a showing of valid prosecutorial
discretion, such as a desire to control organized commercial prostitution.[FN86]
Cases:
To prevail on a claim of selective prosecution in violation of equal protection

principles, a party must show that others similarly situated have not been
subject to enforcement proceedings by the government and that there was an
impermissible basis for the decision to institute enforcement action against
party, such as race, religion, or other arbitrary classification. U.S.C.A.
Const.Amend. 5. U.S. v. Sage Pharmaceuticals, Inc., 210 F.3d 475 (5th Cir.
2000); West's Key Number Digest, Constitutional Law 211(3).
Selective prosecution may be justified by the desire to bring a test case to

clarify a doubtful law, or by the desire to prosecute the most flagrant
violators of a law and thereby to deter other violations of the law. United
States v Johnson (CA5 Tex) 577 F2d 1304, reh den (CA5 Tex) 584 F2d 389; Cook v
Price (CA10 Utah) 566 F2d 699. Also, discriminatory enforcement is not shown
where the evidence simply indicates that the defendants' prosecution was due in
part to an increased community awareness and sensitivity with respect to the
particular crimes involved, the community having been more tolerant of such
crimes in the past. United States v Hayes (CA5 Tex) 589 F2d 811, reh den (CA5
Tex) 591 F2d 1343 and cert den 444 US 847, 62 L Ed 2d 60, 100 S Ct 93.
Substantive due process rights of property owners were not violated when city
and city officials rigorously enforced city's building and fire codes in a
Page 29 of 99
specific area of town in order to shut down businesses around which drug dealers
and prostitutes often congregated, where owners either admitted the existence of
various code violations or made necessary repairs to properties to get city to
lift condemnation orders. U.S.C.A. Const.Amend. 14. Banks v. City of Whitehall,
344 F.3d 550, 2003 FED App. 0340P (6th Cir. 2003); West's Key Number Digest,
Constitutional Law 278.2(1).
Plaintiff-business owner and her husband failed to support claim of selective

enforcement, in violation of equal protection, based on fact that they were
involved in interracial relationship and were arrested as result of theft
allegations by adjacent store owner, while adjacent store owner, who was not
involved in an interracial relationship, was not arrested, since adjacent store
owner was not similarly situated to plaintiffs, who were already criminal
suspects when they attempted to make police report concerning adjacent owner,
and there was no evidence that arresting officer was motivated by racial animus.
U.S.C.A. Const.Amend. 14. Gardenhire v. Schubert, 205 F.3d 303, 2000 FED App.
75P (6th Cir. 2000); West's Key Number Digest, Arrest 63.4(15).
In Hatheway v Secretary of Army (1981, CA9 Cal) 641 F2d 1376, cert den (1981)
454 US 864, 70 L Ed 2d 164, 102 S Ct 324, an army lieutenant who had been
convicted by a court-martial of sodomy claimed that the army's prosecution of
homosexual sodomy cases, but not heterosexual sodomy cases, amounted to
unconstitutional selective enforcement. The court rejected the claim, holding
that the government has a compelling interest in maintaining a strong military
force, which interest is served by prohibition of homosexual conduct among
servicemen, and that a valid reason therefore existed for prosecuting only
homosexual acts of sodomy.
See People v Superior Court of Alameda County, 19 Cal 3d 338, 138 Cal Rptr 66,
562 P2d 1315, where the trial court's finding that the prostitution law was not
discriminatorily enforced against women was upheld. The court held that the
admitted practice of using more male than female decoys was adopted not to
discriminate against women, but as a consequence of the sexually neutral policy
of concentrating on the "profiteer" rather than the customer; that evidence of
enforcement efforts directed against pimps and other non-prostitutes showed that
at least one-half of the vice unit's resources were devoted to prosecutions of
men; and that the policy of subjecting prostitutes, but not customers, who were
arrested to incarceration and quarantine for veneral disease testing was applied
to both male and female prostitutes and was based on valid reasons not related
to sexual discrimination.
In Chavez v United States (1985, Dist Col App) 499 A2d 813, the court rejected a
claim that a prosecutorial policy of refusing to allow illegal aliens to enter a
diversion program for first offenders constituted invidious discrimination. The
court noted that illegal aliens are not members of a suspect class, that an
illegal alien is chargeable with at least two crimes—illegal entry and willful
failure to register—in addition to the crime for which he was arrested, and thus
is not classifiable as a firstoffender, and that the defendant failed to show
that other similarly situated persons (for example, those with significant
arrest records) were treated differently from illegal aliens.
Page 30 of 99
To establish selective prosecution in violation of the equal protection clause,
a defendant must show that he has been singled out for prosecution while others
similarly situated have not been prosecuted for similar conduct and that the
government's discriminatory selection was based upon an impermissible ground,
such as race, religion, or exercise of a First Amendment right to free speech.
U.S.C.A. Const.Amends. 1, 14. State v. 192 Coin-Operated Video Game Machines,
338 S.C. 176, 525 S.E.2d 872 (2000), cert. denied, 121 S. Ct. 62 (U.S. 2000);
West's Key Number Digest, Constitutional Law 250.1(3).
[Top of Section]
[END OF SUPPLEMENT]
§ 9. Burden and quantum of proof
It is uniformly agreed that the burden of proof is on the party claiming

discriminatory enforcement, and the claimant has the burden of presenting some
proof on all elements of the claim,[FN87] as well as the ultimate burden of
persuasion.[FN88]
While this burden has often been called a heavy one, and is frequently justified
by the presumption of prosecutorial regularity, there are no clear standards as
to the quantum of proof required or the type of proof that is sufficient.[FN89]
Although the most common requirement appears to be proof by a mere preponderance
of the evidence, and the trend appears in that direction, some courts have
required proof of discriminatory enforcement by a clear preponderance of the
evidence, and other courts have ignored the issue.[FN90] The uncertainty
surrounding the burden and quantum of proof required has sometimes resulted in
claims being rejected where the evidence overwhelmingly indicated invidiously
discriminatory prosecution.[FN91]
Cases:
Standard for proving claim of selective prosecution requires defendant to

introduce clear evidence displacing the presumption that a prosecutor has acted
lawfully. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119
S. Ct. 936, 142 L. Ed. 2d 940 (1999); West's Key Number Digest, Criminal Law
37.10(1).
Since the government is presumed to have exercised its prosecutorial

responsibilities in good faith, defendants are not entitled to evidentiary
hearings on their selective or vindictive prosecution claims unless they first
identify facts tending to demonstrate (1) that the government refrained from
Page 31 of 99
prosecuting others who were similarly situated, and (2) that the reasons for any
such discrimination were illegitimate. U.S. v. Serafino, 281 F.3d 327 (1st Cir.
2002); West's Key Number Digest, Criminal Law 37.10(2).
Allegedly suspicious timing of illegal reentry complaint against defendant, on

heels of his motion in limine to exclude government's expert witness testimony
in drug trial, his motion for sanctions arising out of government's failure to
adequately respond to defendant's request for bill of particulars, and hearing
on the motion for sanctions where judge strongly admonished prosecutor for
failing to abide by court-set deadlines, was insufficient to shift burden to
government or require hearing on defendant's vindictive prosecution allegation.
U.S. v. Falcon, 347 F.3d 1000 (7th Cir. 2003); West's Key Number Digest,
Defendant who was indicted on federal firearms charge after being acquitted in
state court murder trial failed to prove prosecutorial vindictiveness; district
court's findings that state prosecutor and investigators did not act with
vindictive animus as result of defendant's exercise of right to fair trial in
murder case were not clearly erroneous, and defendant failed to show that
federal prosecutor did not make ultimate decision to bring indictment or did so
with actual animus. U.S. v. Spears, 159 F.3d 1081 (7th Cir. 1998).
The defendant has the burden of proving the government engaged in selective
prosecution. To make a prima facie case a defendant must show: (1) people
similarly situated to him were not prosecuted, and (2) the decision to prosecute
was motivated by a discriminatory purpose. U.S. v. Hirsch, 360 F.3d 860 (8th
Cir. 2004); West's Key Number Digest, Mandamus 37.10(1).
If the defendant claiming prosecutorial vindictiveness proves either actual

vindictiveness or a realistic likelihood of vindictiveness, the burden shifts to
the government to justify its prosecutorial decision based on legitimate,
articulable, objective reasons; if the defendant fails to prove either element,
the trial court need not address the government's justification for its
prosecutorial decision. U.S. v. Sarracino, 340 F.3d 1148, 62 Fed. R. Evid. Serv.
992 (10th Cir. 2003); West's Key Number Digest, Criminal Law 330.
To prevail on a selective prosecution claim under the Constitution, plaintiff

must prove that the action taken by the state was a spiteful effort to "get" him
for reasons wholly unrelated to any state objective; plaintiff must offer proof
that the cause of the differential treatment was a totally illegitimate animus
toward the plaintiff by the defendant. Torres v. Frias, 68 F. Supp. 2d 935 (N.D.
Ill. 1999); West's Key Number Digest, Criminal Law 37.10(1).
Fact that 2 weeks before knife carrying incident inmate had received payment of
$28,000 in settlement of litigation he had brought against Department of
Correction for illegal segregation and the postulated fact of past breaches of
the statutory duty to notify did not together warrant presumption of
prosecutorial vindictiveness or retaliation with respect to knife carrying
incident. Commonwealth v Smith (1996) 40 Mass App 770, 667 NE2d 1160, review den
423 Mass 1108, 671 NE2d 951.
Page 32 of 99
Prosecutors have wide discretion in deciding what actions will be prosecuted,
and the person claiming selective prosecution carries the burden of showing that
they were arbitrarily or unconstitutionally targeted. Farris v. State, 764 So.
2d 411 (Miss. 2000); West's Key Number Digest, District and Prosecuting
Attorneys 8.
Proof of actual vindictiveness on the part of the prosecutor is not required

when the prosecutor's charging decision raises a realistic likelihood of
vindictiveness; rather, in these situations, the Supreme Court presumes
vindictiveness and requires the state to rebut that presumption by proving that
the charging decision was not motivated by vindictiveness. State v. Marti, 732
A.2d 414 (N.H. 1999); West's Key Number Digest, Criminal Law 37.15(1).
To establish claim of selective prosecution based on racial or ethnic profiling,

movant must demonstrate that criminal laws were directed so exclusively against
a particular class as to amount to a practical denial of equal protection under
the law. U.S.C.A. Const.Amend. 14. State v. Halsey, 340 N.J. Super. 492, 774
A.2d 693 (App. Div. 2001); West's Key Number Digest, Criminal Law 37.10(1).
Assertion that there had been no similar prosecutions for more than 15 years,
without more, did not establish selective enforcement of city ordinance. People
v Bergen Beach Yacht Club (1994, City Crim Ct) 160 Misc 2d 939, 612 NYS2d 545.
It is the defendant's burden to establish a prima facie case of selective

prosecution. To make out a case of selective prosecution, the defendant must
show (1) that he was singled out for prosecution even though others similarly
situated have not generally been proceeded against, despite having engaged in
conduct akin to that of which the defendant was accused, and (2) that he was
selected for prosecution on the basis of an impermissible consideration such as
race, religion or the desire to prevent his exercise of constitutional rights.
Commonwealth v Wells (1995, Pa Super Ct) 657 A2d 507.
Presumption that second prosecution for possession of deadly weapon in penal

institution was result of prosecutorial vindictiveness was not overcome; state's
indication that some staff members from sheriff's office were displeased by
dismissal of first prosecution could not be considered as factor negating
presumption as both state and law enforcement authorities participate on side of
state in joint effort to convict defendants. U.S.C.A. Const.Amend. 14. Neal v.
State, 117 S.W.3d 301 (Tex. App. Texarkana 2003); West's Key Number Digest,
[Top of Section]
[END OF SUPPLEMENT]
§ 10. Burden and quantum of proof--The prima facie case
Page 33 of 99
It has been widely recognized that placing the burden of proof on the defendant
to establish all elements of discriminatory prosecution makes it extremely
difficult to prove such a claim.[FN92] In recent years there has been a trend
toward some reduction in the burden on the defendant, and a number of courts
have held that the burden is on the defendant to establish a prima facie case of
improper discrimination, after which the burden of proof shifts to the
prosecution to justify the discrimination.[FN93]
The concept of a prima facie case that will shift the burden to the prosecution
is premised basically on the idea that the state, as the party with knowledge of
and the power to produce the facts necessary to rebut an inference of
discrimination, should be required to produce the facts once a preliminary
showing of discrimination has been made.[FN94] The concept has been utilized
especially in the federal courts, and is essentially the same standard of proof
used in cases involving racial discrimination.[FN95]
The test has been stated variously by different courts, with some speaking in
terms of proof sufficient to raise a reasonable doubt or to establish a prima
facie case, and others tending to speak of proof sufficient to raise an
inference or strong inference of purposeful discrimination.[FN96] Regardless of
the wording used to describe the test, once the defendant presents proof
sufficient to raise an inference of discriminatory selection, or proof
sufficient to raise a reasonable doubt as to the prosecutor's purpose, a prima
facie case is established, and the burden shifts to the prosecution.[FN97]
The amount of evidence necessary to establish a prima facie case has not clearly
been specified,[FN98] and will probably differ depending on the facts of the
particular case. Generally, however, the party claiming discriminatory
enforcement must introduce some evidence indicating selective prosecution based
on some arbitrary or invidious standard.[FN99] Such proof may consist of
statistical evidence indicating prosecution based on some characteristic or
characteristics irrelevant to law enforcement purposes, or of evidence
indicating prosecution of only a very few of the many knowable violators of the
law.[FN1]
Once the defendant has established a prima facie case, the burden then shifts to
the prosecution to present evidence to rebut the inference of improper purpose
or motive.[FN2] The amount of proof necessary on rebuttal will differ with the
classification or standard of selectivity involved. If the selectivity is based
on a suspect classification, such as race or religion, or on the exercise of
some fundamental right, the prosecution can meet its burden only by presenting
compelling evidence of nondiscriminatory enforcement, or evidence showing a
compelling state interest for use of such a classification, and prosecutorial
discretion is an insufficient explanation.[FN3] If the criteria of selectivity
are not based on suspect classifications or fundamental rights, the prosecution
can meet its burden on rebuttal by showing that the criteria have some rational
relationship to a legitimate state interest, and proof of an exercise of valid
prosecutorial discretion would be sufficient.[FN4]
Page 34 of 99
The concept of the prima facie case lowers the amount of proof necessary to
compel the prosecution to present rebuttal evidence. However, the ultimate
burden of persuasion remains on the defendant, provided the prosecution is able
to present rebuttal evidence.[FN5] If the government is unable to meet its
burden on rebuttal, then the defendant is entitled to dismissal of the
case.[FN6]
Cases:
Defendant's suggestion that she, as a mortgage account executive, was prosecuted

for loan-related fraud instead of a purportedly similarly culpable bank because
the bank made a large charitable contribution to the prosecutor's community did
not warrant a hearing on her selective prosecution claim, even though she may
have created a prima facie case of impropriety, where the government refuted the
claim by presenting a list of eight factors it considered in declining to indict
the bank. U.S. v. Graham, 146 F.3d 6 (1st Cir. 1998).
Spanish-speaking defendants charged in connection with sham marriage through

which one defendant sought to evade immigration laws failed to make prima facie
showing to warrant discovery from government on defendants' claim that they were
victims of selective prosecution because of their ethnicity and/or national
origin; neither newspaper article about arrest of four "illegal aliens" from El
Salvador and Guatemala nor unsworn statement that there were seventeen Spanish-
speaking persons in local county jail showed that similarly situated persons
were not prosecuted, and even though non-Spanish-speaking persons who
participated in same criminal events as defendants were not charged, one of them
confessed her role and agreed to cooperate with officials, and other played less
central role in events and also cooperated with government. U.S. v. Magana, 127
F.3d 1 (1st Cir. 1997).
Presumption of prosecutorial vindictiveness did not apply to government's

addition of a witness tampering charge in a superseding indictment after
defendant exercised his right to seek a mistrial, in an initial prosecution for
weapons offenses, where mistrial was declared without opposition, and merely as
a result of a deadlocked jury; under such circumstances no reasonable likelihood
of vindictiveness existed. U.S.C.A. Const.Amend. 5. U.S. v. Perry, 335 F.3d 316
(4th Cir. 2003); West's Key Number Digest, Criminal Law 323.
The following elements make up an equal protection claim for selective

prosecution: first, a government official must single out person belonging to a
protected, identifiable group for prosecution, even though he has decided not to
prosecute persons not belonging to that group in similar situations; second, the
official must initiate prosecution with discriminatory purpose; and finally, the
prosecution must have discriminatory effect on the group which the defendant
belongs to. U.S.C.A. Const.Amend. 14. Harajli v. Huron Tp., 365 F.3d 501, 2004
FED App. 0108P (6th Cir. 2004); West's Key Number Digest, Mandamus 250.1(3).
Page 35 of 99
To raise a reasonable doubt as to the propriety of charges added before trial, a
defendant alleging vindictive prosecution must affirmatively show through
objective evidence that the prosecutorial conduct at issue was motivated by some
form of prosecutorial animus, such as a personal stake in the outcome of the
case or an attempt to seek self-vindication. U.S. v. Falcon, 347 F.3d 1000 (7th
Cir. 2003); West's Key Number Digest, Criminal Law 37.15(1).
In order to establish claim of selective prosecution, a defendant must show that

he was singled out for prosecution while others similarly situated generally
were not proceeded against for the type of conduct forming the basis of the
charge against him, and that the government's selection of him for prosecution
was invidious or in bad faith and was based on impermissible considerations such
as race, religion, or the desire to prevent the exercise of constitutional
rights. U.S. v. Davis, 339 F.3d 1223 (10th Cir. 2003); West's Key Number Digest,
To state claim for vindictive enforcement, plaintiff must show: (1) exercise of
protected right; (2) prosecutor's "stake" in exercise of that right; (3)
reasonableness of prosecutor's conduct; and presumably, (4) that prosecution was
initiated with intent to punish plaintiff for exercise of protected right.
Heaton v. City of Princeton, 47 F. Supp. 2d 841 (W.D. Ky. 1997), aff'd, 178 F.3d
1294 (6th Cir. 1999); West's Key Number Digest, Criminal Law 37.15(1).
To establish a prima facie case of selective prosecution, defendant must

establish: (1) that, while others similarly situated have not generally been
proceeded against because of conduct of the types forming the basis of the
charge against him, he has been singled out for prosecution, and (2) that the
government's discriminatory selection of him for prosecution has been invidious
or in bad faith, i.e., based upon such impermissible considerations as race,
religion, or the desire to prevent his exercise of constitutional rights. U.S.
v. DiStefano, 129 F. Supp. 2d 342 (S.D. N.Y. 2001); West's Key Number Digest,
Defendant established prima facie due process violation with regard to

prosecutorial vindictiveness in that, after he successfully appealed his
conviction, state filed amended felony information that subjected him to higher
sentence than he had received at previous trial, in prosecution for aggravated
robbery. U.S.C.A. Const.Amend. 14. Townsend v. State, 355 Ark. 248, 134 S.W.3d
545 (2003); West's Key Number Digest, Mandamus 37.15(2).
A claim of selective prosecution requires a showing of two elements: (1) proof

that the government had singled a defendant out for prosecution while others
similarly situated were not prosecuted; and (2) proof that the defendant's being
singled out was based on an impermissible motive, such as race, religion, or the
exercise of constitutional rights. Owens v. State, 354 Ark. 644, 128 S.W.3d 445
(2003); West's Key Number Digest, Mandamus 37.10(1).
Defendant, a circuit court judge, failed to make prima facie showing that he was
being singled out for prosecution for attempt to evade or defeat payment of
sales tax, and thus, was not entitled to evidentiary hearing on motion;
defendant provided no factual basis showing he was singled out for prosecution
Page 36 of 99
while others similarly situated were not, and judges were not protected class,
for purposes of requirement that defendant show that motive for prosecution was
impermissibly based on race, religion, or exercise of constitutional right.
Owens v. State, 354 Ark. 644, 128 S.W.3d 445 (2003); West's Key Number Digest,
Mandamus 37.10(2).
Evidence that tavern owners in certain village, including defendant, were

specifically targeted for prosecution under criminal gambling statute, while
other similarly situated tavern owners outside of village were ignored, was
sufficient to establish a prima facie case for discriminatory effect, as was
required to establish selective prosecution defense; before district attorney
sent warning letter to tavern owners outside village, defendant was similarly
situated to other tavern owners who had video gambling machines, but defendant
was prosecuted for violation while other similarly situated tavern owners
outside of village were not. Wis St. 1997, § 945.03(5). State v. Kramer, 248
Wis. 2d 1009, 2001 WI 132, 637 N.W.2d 35 (2001); West's Key Number Digest,
[Top of Section]
[END OF SUPPLEMENT]
§ 11. Evidence
Under any of the various standards, actual proof of discriminatory enforcement

presents major problems.[FN7] In most cases the defendant will encounter the
greatest difficulty in proving the intentional use of unjustifiable criteria of
selectivity, and the difficulty in this regard tends to be even greater in cases
where the discrimination is directed against specific persons rather than
identifiable classes.[FN8]
Direct evidence of improper motive is usually hard to come by, since law
enforcement officials will rarely admit to the use of any improper criteria, and
circumstantial evidence normally must be relied on to create an inference of
improper discrimination.[FN9]
Statistical evidence is often presented in support of a claim of discriminatory

enforcement. Such evidence may consist of governmental or other records showing
frequency of prosecution, and may be utilized either as proof of improper
classification, that is, as proof that those prosecuted share certain
characteristics that are prima facie irrelevant to any legitimate law
enforcement goals, or as proof that there have been very few prosecutions for
violations of the law under which the defendant is charged.[FN10] For example,
in a prosecution for violation of the census laws, evidence was introduced
showing that only four people were prosecuted in the entire state, and that all
four had been publicly active in a census resistance movement.[FN11]
Page 37 of 99
In addition to introducing evidence showing the characteristics of those
prosecuted, a party claiming discriminatory enforcement must also introduce
evidence showing that the known or knowable population of violators is much
larger and includes people who do not share the characteristics that are alleged
to be the criteria of selectivity.[FN12] The defendant must not overlook the
necessity of proving the total population of violators, since failure to
introduce evidence on the issue may result in an adverse decision,
notwithstanding overwhelming statistical evidence of selectivity.[FN13] Such
proof may consist of evidence showing massive and flagrant violations of the
law,[FN14] or evidence of other specific unprosecuted violators who are known,
or through the use of normal information-gathering techniques should be known,
to the prosecution.[FN15]
In an appropriate case, the defendant should produce direct evidence of such

other violations. Thus, in a case involving discriminatory enforcement of a
Sunday sales law, evidence that the defendant's investigator had purchased
forbidden items from numerous other stores and had offered proof thereof to law
enforcement authorities was held admissible on the issue of intentional
discrimination.[FN16] And in a case where the defendants, members and supporters
of a labor union, filed over 100 affidavits showing, in addition to specific
instances of enforcement of criminal laws against them, numerous other specific
instances of criminal acts by others against members of the union, without
arrest or prosecution, it was held that such allegations established a prima
facie case of invidious discrimination.[FN17]
Moreover, in a case where the defendant is being prosecuted for violation of an

ordinance or regulation limiting use of some public facilities, evidence may be
introduced showing that the government frequently permitted use of the same
facilities by other persons or groups espousing viewpoints apparently acceptable
to the government, and that the government denied such use only to persons or
groups espousing viewpoints similar to the defendant's.[FN18]
In some cases the defendant may be able to elicit direct evidence from
prosecutorial or police authorities indicating discriminatory enforcement. For
example, statements of broad prosecutorial policy may suggest standards of
enforcement used by the authorities.[FN19] Such evidence may be elicited through
examination of government officials or through introduction of government
documents and may, if it establishes enforcement of a statute only against
certain types or classes of violators, be strong evidence of discriminatory
enforcement.[FN20] Thus, in a case where the district attorney and police
officials all testified that their policy was not to enforce a Sunday closing
law except on complaint by citizens, discriminatory enforcement was found to
exist.[FN21] Similarly, in a case involving prosecution for failure to carry a
draft card, evidence of a government policy statement of nonprosecution for such
offenses, coupled with other evidence indicating that the defendant was
prosecuted as punishment for his exercise of first amendment rights, was held to
establish a prima facie case of discriminatory enforcement.[FN22]
In addition to evidence concerning normal policy, the defendant should introduce

any available evidence indicating the use of special or unusual procedures in
his case, since the use of such unusual procedures is often strong evidence of
Page 38 of 99
discriminatory enforcement.[FN23] For example, the participation of high-level
government officials in the decision to prosecute the defendant, or the
preparation of a special background dossier on the defendant is evidence
indicating discriminatory prosecution.[FN24] In addition, in any case in which
the prosecutor has admitted to the defendant that his prosecution was prompted
by improper considerations, evidence of such admission should be
introduced.[FN25]
Cases:
Prosecutor's press conference: Defendant charged with making fraudulent

statements to the government, tax fraud, and money laundering, in connection
with federal farm program scheme, failed to establish prima facie case of
selective prosecution, based upon prosecutor's statements to press relating to
the one-of-a-kind nature of the prosecution, absent showing that charges were
initiated because of defendant's race, religion, or some other attempt he made
to secure his constitutional rights, and absent showing that others similarly
situated were not prosecuted for similar conduct. U.S. v. Huber, 404 F.3d 1047,
95 A.F.T.R.2d 2005-2010 (8th Cir. 2005); West's Key Number Digest, Criminal Law
37.10(2).
Speeding motorcyclist charged with reckless driving following high speed chase
was not "similarly situated" to companion motorcyclist who was also speeding,
but not charged with reckless driving, as required to demonstrate selective
prosecution of speeding motorcyclist, where speeding motorcyclist was pursued by
county officers and attempted to evade officers, but companion motorcyclist did
not. Poole v. County of Otero, 271 F.3d 955 (10th Cir. 2001); West's Key Number
Digest, Counties 146.
The court held that the plaintiffs, three "adult" book stores engaged in the
sale of sexually explicit materials, were entitled to preliminary injunctive
relief from harassment through improper use of the obscenity laws, where the
evidence showed that, as part of New York City's campaign to clean up the
midtown area, building, fire, and health code inspections and enforcement had
been aimed disproportionately at sexually oriented businesses; that such
administrative code enforcement actions had often been based on information
known to be false; that law enforcement officials had decided to concentrate
their efforts on the plaintiff bookstores, in connection with which almost daily
arrests and seizures were made, with between 20 and 30 arrests on obscenity
charges being made in less than three weeks; that the arrests were effected at
such times and in such ways as to have the maximum negative impact on the
plaintiffs' business operations; that the policy of releasing arrestees on "desk
appearance tickets" was discontinued with respect to persons arrested in adult
book stores on obscenity charges, thereby forcing such persons to spend the
night in jail; that many of the arrests and seizures were illegal; that there
had not been prosecution of any of the arrests; and that public statements by
and memoranda of various public officials confirmed the inference that the
defendants were engaged in a persistent pattern of misconduct aimed at
eliminating the sale of all sexually oriented materials in the midtown area, and
particularly in the plaintiffs' stores, in violation of the First Amendment.
Black Jack Distributors, Inc. v Beame (DC NY) 433 F Supp 1297.
Page 39 of 99
That pictures of Iranian clerics were seized during search of defendant's home
but picture of former United States President and his wife was not did not raise
inference of discrimination supporting claim of selective prosecution asserted
by defendant, who was charged with making transfers of funds and equipment to
Iran in violation of International Emergency Economic Powers Act (IEEPA) and
executive order, inasmuch as pictures of clerics could possibly be proof of
motive, whereas picture of former President and his wife would prove nothing for
the prosecution. International Emergency Economic Powers Act, §§ 203, 206, 50
U.S.C.A. §§ 1702, 1705. U.S. v. Anvari-Hamedani, 378 F. Supp. 2d 821 (N.D. Ohio
2005); West's Key Number Digest, Criminal Law 37.10(2).
Statement in United States Attorneys' Manual that robbery provision of Hobbs Act
was to be utilized "only in instances involving organized crime or wide-ranging
schemes" did not prohibit Hobbs Act robbery prosecution that allegedly did not
involve such circumstances; Manual provided only guidance, and could not be
relied upon to create any rights. 18 U.S.C.A. § 1951. U.S. v. Hodge, 77 F. Supp.
2d 674 (D.V.I. 1999); West's Key Number Digest, Criminal Law 29(11).
In Griffin v Municipal Court for Desert Judicial Dist. 20 Cal 3d 300, 142 Cal
Rptr 286, 571 P2d 997, it was held that the two defendants, former sheriff's
deputies charged with willful inhumanity or oppression of a prisoner, had made a
prima facie showing of discriminatory enforcement based on the fact that one
deputy was black, where they submitted declarations alleging nine specific
unprosecuted incidents of prisoner beatings and maltreatment by white officers
over a period of five years, such incidents being as serious as or more serious
than the incident charged against the defendants.
A defendant convicted of forgery and theft appealed. On appeal, the defendant

challenged his conviction as a habitual offender on equal protection grounds,
claiming that gender was a factor. The supreme court affirmed, finding that the
record was devoid of any evidence supporting defendant's claim. The defendant's
motion and sworn statement contained only a bald assertion that the habitual
offender count was selectively charged and that the defendant had records
showing that from the year 1897 through the year 1981, no female was sentenced
as a habitual offender. It was not accompanied by sworn allegations based on
personal knowledge or disclosing sources of information and grounds for belief
that gender was a factor in charging him as a habitual offender. Moreover, a
mere showing that no females were sentenced as habitual offenders in Indiana
prior to 1981 would alone be insufficient to support the defendant's equal
protection claim. Kindred v State (1989, Ind) 540 NE2d 1161.
Decision to refile charges against defendant after he testified in companion's

trial was proper exercise of prosecutorial discretion and was not vindictive
prosecution in violation of defendant's due process rights in drug trafficking
trial, though prosecutor indicated that charges probably would not have been
refiled if defendant had not testified in companion's trial, where defendant
accepted full responsibility for crime under oath in companion's trial and again
accepted responsibility in his own trial. U.S.C.A. Const.Amends. 5, 14; Missouri
Constitution Art 1, § 10. State v. Patino, 12 S.W.3d 733 (Mo. Ct. App. S.D.
1999); West's Key Number Digest, Constitutional Law 257.5.
Page 40 of 99
A defendant appealed his conviction of several tax-related misdemeanors on the
ground of selective prosecution, arguing that he was singled out for prosecution
because of his affiliation with an organization opposed to personal income tax
laws. The court of appeals affirmed, finding that defendant failed to present
convincing statistical evidence for discriminatory selective prosecution.
Defendant pointed out that in 1988 five of eight charges for tax-related
offenses initiated by the department of revenue special investigations unit were
against persons affiliated with his organization. He stated, by contrast, that
600,000 out of 3.2 million North Carolinians did not file a tax return and could
have been prosecuted by the unit. The court found that defendant failed to show
that his prosecution was based on his affiliation with a recognizable, distinct
class that suffered discrimination while others similarly situated were ignored.
Defendant's statistical evidence compared dissimilarly situated groups in
contrasting his treatment with that of other North Carolinians who didn't pay
personal income taxes in 1988. It also ignored the fact that preceding 1988 the
department of revenue initiated charges against numerous non-organization
members. Defendant failed to include the number of prosecutions initiated by the
department outside the special investigations unit or the number of prosecutions
that occurred under other statutes. Finally, a special investigator from the
department of revenue testified that when he began his investigation he was not
aware of defendant's affiliation with the organization. State v Davis (1989) 96
NC App 545, 386 SE2d 743.
Fact that only three of five police officers involved in arrest and death of
arrestee were prosecuted did not support finding of selective prosecution, as
would bar retrial of the prosecuted officers following mistrial, though
coroner's jury had recommended that all five officers face criminal charges, and
Commonwealth's medical theory was that combined actions of all five officers had
caused arrestee's death, absent showing of impermissible reason for such
selection; one of uncharged officers had been chosen to establish corpus delicti
of crime based on fact that he had been involved in incident from beginning to
end, and other uncharged officer had arrived later to scene of incident and had
physically participated in struggle with arrestee to minimal extent. Com. v.
Mulholland, 702 A.2d 1027 (Pa. 1997).
Evidence that white police officers were not prosecuted for wiretap violations
was insufficient to establish selective prosecution claim brought by African
American defendant, who was police officer and charged with wiretap violations;
unlike defendant, officers who were not prosecuted did not employ police wiretap
training to perpetrate their alleged crimes, district attorney did not know the
race of defendant when he made the decision to prosecute, and pattern of bias in
favor of white officers could not be imputed to district attorney based upon
actions of other prosecuting authorities. Com. v. Murphy, 2002 PA Super 83, 795
A.2d 997 (Pa. Super. Ct. 2002); West's Key Number Digest, Criminal Law 37.10(2).
Defendant produced no evidence tending to support her claim of equal protection

violation in selective prosecution of women, but not men, for disorderly conduct
for appearing topless in public; there was no evidence that women anywhere were
prosecuted when men allegedly doing same thing were not prosecuted under similar
circumstances, defense expert's testimony was not directed to different
treatment of similarly situated persons, expert testified that public exposure
of female breasts would cause disturbance among both men and women, and evidence
at trial did not identify any men who could have been, but were not, prosecuted
Page 41 of 99
for disorderly conduct. Carreras v State (1996, Tex App Houston (14th Dist)) 936
SW2d 727.
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[END OF SUPPLEMENT]
§ 12. Evidence--Discovery
In many cases most of the relevant evidence on the issue of discriminatory

prosecution will be solely in the prosecution's possession, and adequate
discovery may be crucial to the defendant's proof on the issue.[FN26] However,
many courts have severely restricted defense access to evidence of intentional
discrimination possessed by the prosecution, often requiring a colorable showing
not only of selectivity, but also of the use of improper standards.[FN27] It has
been argued that such a requirement puts an impossible burden on the defendant,
since the evidence required to make such a showing, and thus to gain discovery
of the prosecutor's files, is in the prosecutor's control.[FN28]
Various solutions have been proposed for this dilemma, and in some recent cases
the showing required to obtain discovery has been relaxed somewhat. Thus, in one
case where a motion for dismissal alleged facts clearly sufficient to support a
claim of invidious discrimination, it was held that the defendants were entitled
to discovery of both direct evidence, including memoranda and correspondence of
prosecutorial and police agencies, and circumstantial evidence, including
statistical data concerning prosecutions and arrests, relevant to the claim of
discriminatory enforcement. The court held that in such a case traditional
discovery principles required that the defendants be allowed discovery of
relevant information, subject to any objections to specific items that the
prosecution might make.[FN29] In another case it was held that the defendant's
discovery motion should have been granted, even though he conceded that he could
not establish discriminatory prosecution without the discovery, where the
defendant had established plausible justification for the motion and
demonstrated that the discovery would facilitate the ascertainment of relevant
facts, the court stating that the showing necessary to obtain discovery need not
necessarily be strong.[FN30]
One reason for the reluctance to order discovery is the reluctance to compel the
prosecution to reveal confidential items. One proposed solution is to require
the prosecution to provide the defendant any relevant enforcement statistics,
since such statistics are not privileged, and, if the defendant can prove
selective enforcement, then the court could examine any privileged prosecutorial
documents in camera, giving the defense any documents determined to be relevant
to the issue of discriminatory enforcement.[FN31] At least one court has used
this approach, noting that the test for disclosure to the defense in such a
situation should be the relevancy of any government documents to the defense of
discriminatory prosecution, not the confidentiality of any such documents.[FN32]
Page 42 of 99
In a proper case the defendant should press for discovery even in the face of an
adverse response by the prosecution, since noncooperation by the prosecution
might well be taken into consideration by the court. Thus, in one case
discriminatory enforcement was found, despite the prosecutorial authorities'
claim of lack of knowledge concerning other offenders, the court noting that the
defendant, although hampered by the government refusal to provide data on
similar offenses, had still proved the existence of at least six nonprosecuted
offenders, and that normal prosecutorial procedures should have revealed other
offenders.[FN33]
Cases:
Defendant of Arab ethnicity who was being prosecuted for unlawfully procuring
naturalization through sham marriage was not entitled to discovery on his claim
that persons of Arab ethnicity were being selectively prosecuted for such
immigration-related offenses following the September 11th terrorist attack by
Arab extremists, where only evidence that defendant presented of discriminatory
purpose and effect was dubious statistical evidence which suffered from serious
methodological deficiencies, and where, in addition, most of government's nearly
18-month investigation into defendant's case had been completed prior to events
of September 11th. U.S.C.A. Const.Amend. 5. U.S. v. Alameh, 341 F.3d 167, 62
Fed. R. Evid. Serv. 327 (2d Cir. 2003); West's Key Number Digest, Criminal Law
627.8(3).
In a case where the defendant, in support of his claim of discriminatory

prosecution of the tax laws, sought discovery of internal Internal Revenue
Service documents, it was held that his rights were sufficiently protected by a
procedure under which the court examined the requested documents in camera,
thereafter denying the motion. The appellate court noted that it had also
examined the documents and that the defendant, by failing to establish a prima
facie case of selective enforcement, had also failed to establish his right to
discovery of the requested documents. United States v Johnson (CA5 Tex) 577 F2d
1304, reh den (CA5 Tex) 584 F2d 389.
To obtain discovery in support of claim of selective prosecution under equal

protection component of Due Process Clause, defendant must produce some evidence
making credible showing of both discriminatory effect and discriminatory intent.
U.S.C.A. Const.Amend. 5. U.S. v. Johnson, 136 F. Supp. 2d 553 (W.D. Va. 2001);
West's Key Number Digest, Criminal Law 627.8(3).
In Griffin v Municipal Court for Desert Judicial Dist. 20 Cal 3d 300, 142 Cal
Rptr 286, 571 P2d 997, where the two defendants, former sheriff's deputies
charged with willful inhumanity or oppression of a prisoner, established a prima
facie case of discriminatory enforcement based on the fact that one of the
officers was black, the court held they were entitled todiscovery consisting of
a statistical summary of the sheriff's department records for the preceding 14
years, showing annual figures as to the number and percentage of black officers
employed and terminated by the department, the total number of investigations by
Page 43 of 99
the department into alleged violations of the statute involved and the number of
such investigations that involved a black officer, and the total number of
prosecutions under the statute and the number of such prosecutions involving a
black officer.
In order to obtain discovery of police records to show enforcement patterns

during a period of time in a geographical location to support a claim of racial
or ethnic profiling, a defendant must first make a showing of a colorable basis
for a claim of selective enforcement. State v. Halsey, 340 N.J. Super. 492, 774
A.2d 693 (App. Div. 2001); West's Key Number Digest, Criminal Law 627.6(6).
To obtain discovery in support of a selective prosecution claim, criminal

defendants must make a credible showing that similarly situated individuals of a
different race were not prosecuted for such offense. U.S.C.A. Const.Amend. 14.
State v. Hatchett, 2003 SD 85, 667 N.W.2d 680 (S.D. 2003); West's Key Number
[Top of Section]
[END OF SUPPLEMENT]
§ 13. Evidence--Rebuttal
Although the courts have generally stated that the government must introduce
compelling evidence to rebut a prima facie case of discriminatory prosecution,
the issue of the sufficiency of rebuttal evidence has not received a great deal
of attention.[FN34] Generally, however, rebuttal evidence may consist of proof
that there was actually no selectivity, that any selectivity was unintentional,
or that any intentional selectivity was not arbitrary or invidious.[FN35]
To rebut a prima facie case, the prosecution must introduce evidence that rebuts
the inference of purposeful discrimination or shows some specific legitimate
justification for the selectivity, and mere denials of discriminatory purpose or
claims of prosecutorial ignorance of the selectivity are insufficient.[FN36] The
sufficiency of any rebuttal evidence will differ with the particular
classification, with a more substantial showing required in cases involving
suspect classifications or fundamental rights.[FN37] Since not all violators of
a statute need be prosecuted, evidence showing that the defendant was chosen for
prosecution by random selection would be sufficient rebuttal.[FN38]
In a case where the selectivity is clearly established or is admitted by the

government, the prosecution might rebut the inference of invidiousness by
showing that the selectivity was the result of a valid exercise of prosecutorial
discretion. Thus, enforcement of prostitution laws primarily against women might
Page 44 of 99
be justified by evidence showing that the selectivity was part of an attempt to
control organized commercial prostitution.[FN39]
Cases:
Similarly, prosecution of one violator of a law while other violators admittedly

were not prosecuted may be justified by evidence showing that the particular
defendant's violation was especially flagrant and egregious, and that other
violations of the law were minor and innocuous.
Presumption of prosecutorial vindictiveness may be rebutted with showing of

legitimate, articulable, objective reasons for superseding indictment; burden is
shifted to prosecutor to show that his or her decisions were justified by
independent reasons or intervening circumstances which dispel appearance of
vindictiveness. U.S. v. King, 126 F.3d 394 (2d Cir. 1997).
See Cook v Price, (CA10 Utah) 566 F2d 699 (zoning ordinance enforced against
most flagrant violator thereof). See also United States v Johnson (CA5 Tex) 577
F2d 1304, reh den (CA5 Tex) 584 F2d 389 (vigorous prosecution of tax protesters
for tax law violations permissible to punish flagrant violators and to deter
violations by others). Moreover, the prosecution might justify its decision to
prosecute the particular defendant, notwithstanding the fact that similar crimes
were not prosecuted in the past, on the ground that increased community
awareness and sensitivity to the crimes involved is responsible for the decision
to prosecute the particular defendant. United States v Hayes (CA5 Tex) 589 F2d
811, reh den (CA5 Tex) 591 F2d 1343, and cert den 444 US 847, 62 L Ed 2d 60, 100
S Ct 93 (prosecution of police chief under federal civil rights statute).
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[END OF SUPPLEMENT]
§ 14. Criticisms and suggested changes
Most of the critical comment concerning the defense of discriminatory

enforcement has been directed at the heavy burden required of a defendant
raising the claim. Thus, it has been said that the defendant must allege and
prove what the prosecutor knew, what the prosecutor decided, and the reasons for
the prosecutor's decision. Moreover, the defendant must present such proof even
though in fact he has been unequally treated, and even though most of the
matters he must prove are in the prosecutor's knowledge, not the
defendant's.[FN40] As a result of the heavy burden placed on the defendant and
the requirement that he prove the prosecutor's intent, the defense of
discriminatory enforcement has often proved more illusory than real.[FN41]
Page 45 of 99
The justification generally offered for the heavy requirements placed on a
defendant is the necessity of deference to prosecutorial decisions and the
presumption of regularity.[FN42] However, the presumption of regularity has been
described as questionable, and it has been noted that in many cases the decision
to prosecute a particular person is merely a reaction to the decision of an
individual police officer, rather than the result of an exercise of legitimate
prosecutorial discretion.[FN43] Moreover, many discriminatory enforcement claims
are made with respect to laws that are outmoded or cover relatively trivial
conduct, and that are rarely enforced, and the danger that prosecutions for
violations of such laws will be based on improper motivation is much greater
than in the case of generally enforced laws.[FN44]
Most of the proposed changes have involved suggestions for greater recognition
of the concept of the prima facie case, usually coupled with elimination of the
requirement that the defendant prove the prosecutor's improper motivation. Thus,
it has been argued that when the defendant presents sufficient proof to raise a
reasonable doubt as to the prosecutor's purpose, the presumption of regularity
should disappear, and the burden should shift to the prosecution to show the
neutrality of the defendant's selection for prosecution.[FN45] Proponents of
such a change often suggest that the defendant be required to present only a
minimum of proof of discriminatory enforcement, and that the prosecution have a
heavy burden on rebuttal.[FN46]
Under such an approach, the defendant would not be required to prove purposeful
or invidious discrimination. Proof of some gross disparity, such as enforcement
of the law against only one of many possible groups, or against only a very few
of many possible actual violators, would be sufficient to shift the burden to
the state.[FN47] The burden would then be on the state to prove lack of
invidiousness, rather than on the defendant to affirmatively show
invidiousness.[FN48] Moreover, it has been suggested that the only method of
rebutting such a prima facie case should be by proof of some proper
justification for the selectivity, and that it should not matter whether the
prosecutor or police actually knew of other violators, or whether they knew they
were using improper standards.[FN49]
It has also been argued that, once the defendant introduces a minimum of proof,
the burden of persuasion should be on the prosecution, rather than the
defendant,[FN50] and it has further been suggested that when the particular law
is normally disregarded and seldom enforced, such general nonenforcement alone
should create a prima facie case of discriminatory enforcement.[FN51]
In addition to criticisms leveled at the burden and quantum of proof required of

a defendant claiming discriminatory enforcement, some critical comment has also
been directed at limitations placed on defense access to relevant evidence
possessed by the prosecution, and it has been noted that these two factors in
combination often make it impossible to establish the claim. Thus, it has been
suggested that controls over prosecutorial abuse could be made more effective by
permitting a defendant reasonable access to prosecutorial evidence that might
establish a claim of discriminatory enforcement.[FN52]
§ 15. Practice pointers
Page 46 of 99
Since the courts have traditionally been reluctant to make a finding of

discriminatory enforcement, an attorney desiring to raise such a claim must
exercise great care in all phases of preparation and presentation of the claim,
and failure in any one area may well result in an adverse finding. Moreover, in
a jurisdiction where the present state of the law on discriminatory enforcement
is not clearly settled, an attorney who has carefully prepared and presented the
facts underlying the claim may have a greater chance of success in arguing for
the application of the concept of the prima facie case or in seeking discovery
of relevant information.
In addition to marshalling the facts, a party claiming discriminatory

enforcement must plead the claim properly. The courts usually require an
allegation of purposeful or invidious discrimination, and cases denying claims
of discriminatory enforcement have often relied on the lack of such an
allegation.[FN53] Claims of discriminatory enforcement have also often been
denied due to failure to offer sufficient proof on all necessary elements,[FN54]
and one court, in finding discriminatory enforcement in what it described as a
meticulously detailed record that squarely presented the issue, noted that
earlier cases had not presented such an adequate record.[FN55]
In situations where most of the relevant evidence is in the possession of the

prosecution, it may be necessary to conduct an extensive independent
investigation to develop evidence, for use either in connection with a discovery
motion, or a hearing on the merits, or both. Thus, in one case the defendants,
in support of their motion for discovery, filed over 100 affidavits of numerous
specific incidents indicating discriminatory enforcement of various laws, and it
was found that the allegations were sufficient to raise a prima facie case and
to justify discovery.[FN56] In another case, involving a Sunday sales law, proof
that the law was widely violated without prosecution was obtained by having the
defendant's investigator maek purchases of forbidden items from numerous other
stores, proof of which purchases the investigator offered to the appropriate law
enforcement authorities.[FN57] And in a case involving a prosecution for
violation of the census laws, where the census officials claimed to have no
knowledge of other offenders, the defendant produced six other offenders who
were not prosecuted.[FN58]
While the availability or feasibility of securing such evidence will necessarily

depend on the particular case, a defense counsel faced with problems of proving
the existence of other unprosecuted violators and a government refusal to admit
their existence should not overlook the possibility of such independent proof,
especially since the presentation of such proof in the face of government
denials may well cast doubt on other aspects of the prosecution's case.
Finally, in many cases it is impossible to establish a claim of discriminatory

enforcement without at least some testimony from government officials. While
such officials generally are unlikely to admit the existence of any
discriminatory enforcement policy,[FN59] skillful examination of prosecutorial
or other authorities may persuade the court to reject any self-serving denials
Page 47 of 99
of improper motivation or selectivity,[FN60] especially if the defendant has
introduced other evidence indicating a substantial possibility of the use of
some arbitrary or invidious standards of enforcement.
Cases:
The importance of offering evidence sufficient to establish a prima facie case

was stressed in United States v Sun Myung Moon (1983, CA2 NY) 718 F2d 1210, 83-2
USTC ¶9581, 14 Fed Rules Evid Serv 133, cert den (1984, US) 80 L Ed 2d 818, 104
S Ct 2344, the court noting that, while prosecution of a controversial religious
figure naturally raises the suspicion of improper motives, such suspicion may
not serve as a substitute for the necessary evidentiary showing.
A selective-prosecution claim must be raised before trial or it is waived.

Fed.Rules Cr.Proc.Rule 12(b)(3)(A), (e), 18 U.S.C.A. U.S. v. Huber, 404 F.3d
1047, 95 A.F.T.R.2d 2005-2010 (8th Cir. 2005); West's Key Number Digest,
Any selective prosecution claim was foreclosed once defendant pled guilty,
despite claim that selective prosecution claim did not ripen until after
defendant had entered its plea. U.S. v. Tucor Intern., Inc., 35 F. Supp. 2d 1172
(N.D. Cal. 1998), aff'd, 189 F.3d 834 (9th Cir. 1999); West's Key Number Digest,
Cases growing out of an unlawful air traffic controllers' strike in 1981 also
illustrate the importance of making an adequate factual showing in the trial
court. The indictment of one controller for participating in the strike was
dismissed on the ground of discriminatory prosecution where, the court held, the
defendant had established a prima facie case showing a direct causal connection
between his status as a union official and the government's decision to
prosecute him. United States v McDonald (1983, SD Tex) 553 F Supp 1003, 112 BNA
LRRM 2428. However, the convictions of other controllers for participating in
the strike were upheld, the courts holding that the evidence showed that the
government had prosecuted the controllers because of their status as strike
leaders and not because of their status as union officials or participants.
United States v Greene (1983, CA5 Tex) 697 F2d 1229, 113 BNA LRRM 2507, cert den
463 US 1210, 77 L Ed 2d 1391, 103 S Ct 3542, 113 BNA LRRM 3056; United States v
Taylor (1982, CA9 Ariz) 693 F2d 919, 112 BNA LRRM 2068.
[Top of Section]
[END OF SUPPLEMENT]
II. Proof of Discriminatory Enforcement of Law Against Individual Exercising

Constitutional Rights
Page 48 of 99
A. Elements of Proof
§ 16. Guide and checklist
The following facts and circumstances, among others, tend to establish that a
generally unenforced law is being enforced against a particular defendant due to
his exercise of constitutionally protected rights:
? Frequent violations of law [§§ 17, 22]
? Police knowledge of other violations [§ 17]
? Prosecutorial knowledge of other violations [§ 19]
? Previous nonenforcement of law [§§ 18, 19, 22]
? Subsequent nonenforcement of law [§ 19]
? Policy of nonenforcement of law [§ 18]
? Use of special procedures in prosecution of defendant [§ 20]
? Political activity by defendant [§§ 21, 23]
? Prosecutorial knowledge of defendant's political activity [§§ 21, 24]
? Prosecutorial admission of improper motivation [§ 24]
[In the following proof it is assumed that the defendant is being prosecuted for
violation of a Sunday sales law, and that the defendant does not deny having
made the sale in question, but seeks to defend on the ground that the statute is
generally unenforced and is being enforced against him solely as a result of his
political activity.]
B. Testimony of Chief of Police
§ 17. Knowledge of frequent violations of law
[After introduction and identification of witness]
Q. Where do you presently reside?
A. I live here in the city of , at [address].
Q. How long have you lived in this city?
A. All my life, except for the time I was in the army.
Page 49 of 99
Q. What is your present occupation?
A. I am the chief of police for the city of .
Q. How long have you held that position?
A. For years.
Q. Prior to becoming chief of police, what was your occupation?
A. I was a member of the police department.
Q. How long have you been on the police force here?
A. Well, I joined the force as soon as I got out of the army, so altogether I've
been on the force for years.
Q. What positions did you hold prior to becoming the chief?
A. I started out as a patrol officer, and I went from that to sergeant, and then
to a detective position, which was the last position I held before being
promoted to chief.
Q. Are you familiar with [statute defendant is charged with violating]?
A. Yes, I am.
Q. Specifically, are you familiar with what can and cannot be sold on Sunday
under the terms of that statute?
A. Generally, yes. I can't honestly say that I know all the exceptions, but I
know most of them.
Q. [Defendant] has been charged with the sale of [a pair of men's slacks] on a
Sunday. To your knowledge, is such a sale prohibited by the statute?
A. Yes, it is.
Q. Is the sale on a Sunday of other items of clothing prohibited by the statute?
A. Yes, the statute prohibits the sale of any item of clothing on a Sunday.
Q. During the time you have been on the police force in the city of , has it
been a common practice for various stores to be open on Sundays?
A. Yes, it has.
Q. What types of stores have commonly remained open for business on Sundays?
A. I'm not sure I can really classify them. All kinds of stores stay open on
Sundays, including supermarkets, drug stores, small groceries.
Q. Of the stores that remain open on Sunday, do any of them carry items of
clothing for sale?
A. Yes, a lot of them do.
Page 50 of 99
Q. To your knowledge, do any of those stores sell items of clothing on Sundays?
A. Yes, they do.
Q. Have you ever personally observed clothing being sold on a Sunday in such a
store, other than the store operated by [defendant]?
A. Yes, I have.
Q. Have you ever purchased an item of clothing on a Sunday from any such store?
A. Yes, I have.
§ 18. Policy of nonenforcement of law
Q. During the time that you have been on the police force here, do you recall
any previous prosecution for violation of this statute?
A. No, I don't recall any.
Q. Have you, as chief of police, ever issued any policy statement with respect
to enforcement of that statute?
A. Well, I have never made any formal written pronouncement, if that is what you
mean.
Q. Do you have any informal policy with respect to enforcement of that statute?
A. Frankly, I have never bothered to try to enforce the Sunday sales law. I
don't know if that qualifies as an informal policy, but that has always been my
attitude, not only as chief but while I was a patrol officer also.
Q. Prior to the time that you became chief, were you ever instructed by any
superior officer with respect to enforcement of the Sunday sales law?
A. I can't really recall. I know for sure that no one ever told me to enforce
it, but I'm not sure whether anyone told me not to enforce it.
Q. Since you have been chief, have any of your officers questioned you regarding
enforcement of that statute?
A. On one or two occasions, an individual officer has asked me whether we should

cite people for violations of the statute.
Q. What has your response been to those officers?
A. I told them not to worry about such violations, and to concentrate their
energies on more serious crimes.
Q. To your knowledge, since you have been chief has any officer cited anyone
other than [defendant] for violation of this statute?
A. Not to my knowledge, no.
Page 51 of 99
Q. During the years that you have been on the force, have you ever known of any
officer citing anyone other than [defendant] for violation of that law?
A. No.
Case Illustration: Significance of police policy of nonenforcement.
In finding that enforcement of a Sunday sales law only at the instance of an

interest group constituted discriminatory enforcement, the court relied on
evidence establishing massive and flagrant violations of the law, known and
acquiesced in by state and local law enforcement agencies, noting testimony from
the district attorney, a state police commander, and a deputy city police
commissioner to the effect that there was a general policy of nonenforcement and
that prosecutions were brought only on complaints by private citizens, including
testimony by the deputy police commissioner that in 35 years he could not recall
any prosecutions initiated by the police. People v Acme Markets, Inc., 37 NY2d
326, 372 NYS2d 590, 334 NE2d 555.
C. Testimony of Prosecutor
§ 19. Previous and subsequent nonenforcement of law
A. I am the city attorney for the city of .
Q. How long have you held that position?
A. Since .
Q. Is that an elective or appointive position?
A. It is an elective office.
Q. When does your present term expire?
A. On , .
Q. When will the next election for the position of city attorney be held?
A. The primary election will be held in , , and the general election will be
held the following November.
Q. Do you intend to be a candidate for reelection as city attorney?
A. I really haven't decided yet.
Q. Does the city attorney's office have any responsibility for prosecution of
criminal offenses in the city of ?
A. Yes, my office is responsible for the prosecution of misdemeanors and minor

offenses.
Page 52 of 99
Q. Is your office in charge of the present prosecution of [defendant] for
violation of [statute]?
A. Yes, it is.
Q. Prior to , 20 [date of alleged violation], were any prosecutions for

violation of that statute instituted during your term as city attorney?
A. Prior to that date, I don't believe so.
Q. Subsequent to , , has your office instituted any prosecutions for violation

of that statute other than the prosecution of [defendant]?
A. No, it has not.
Q. To your knowledge, during your term as city attorney have any other stores in
the city of sold clothing on Sundays?
A. Yes, other stores have.
Practice Comment: Importance of independent evidence of violations.
In the absence of other evidence showing frequent violations of the statute, the
prosecutor might deny any knowledge concerning other violators. By presenting
substantial independent proof of frequent violations, the defendant can
effectively force the prosecutor either to admit knowledge of other violations
or to make a denial that the court is unlikely to believe.
§ 20. Use of special procedures in prosecution of defendant
Q. How many deputy city attorneys are presently employed by your office?
A. Right now we have [number] deputies.
Q. Does your office have a criminal division?
A. Yes, it does.
Q. How many deputies are assigned to that division?
A. As of now, there are [number] assigned exclusively to the criminal division,

and [number] are assigned half-time to that division.
Q. Do these deputies handle all of the criminal matters in your office?
A. Normally, yes. On occasion the case load is such that it is necessary to

assign some civil deputies temporarily to assist the criminal deputies, but that
happens only once or twice a year.
Q. What are the responsibilities of those deputy attorneys who are assigned to
the criminal division?
Page 53 of 99
A. They are generally responsible for the handling of a criminal case, from the
time a complaint is received through the trial or other disposition of the
particular case.
Q. Do most of the complaints of criminal violations come from one source?
A. Yes, they do.
Q. What is that source?
A. Ordinarily, the complaints originate with the police department, as a result

of either an arrest or a citation by an officer.
Q. Once an arrest has been made or a citation has been issued, what is normally
the next step?
A. In the case of an arrest, the usual procedure is that the arrest report is
routed to my office, where one of the deputy attorneys reads and evaluates it
and decides what, if any, further action will be taken with respect to
prosecution of the case. If the deputy determines that the facts warrant
prosecution, he or she then files a complaint, and the case proceeds from there.
Q. What happens in the case of a citation?
A. This varies somewhat depending on the type of offense involved. For example,
if it is a traffic violation and the person cited posts bail, and does not seek
to contest the citation, then my office is not involved at all. In such cases my
office gets involved only if there is to be a trial. In some other citation
offenses, such as violation of the fire code, the citation is sent to my office
and a deputy is assigned to prosecute the case through the courts, if warranted.
Q. Do you ever receive criminal complaints directly from private citizens?
A. Yes, sometimes we do.
Q. What is normally done in a situation such as that?
A. Well, we normally refer such people to the police department for initial
investigation of their complaint to see if there has been any criminal
violation. However, on occasion, when the facts clearly indicate a prosecutable
offense, we may file a criminal complaint with the court.
Q. Who makes the referral to the police department or decides to file the
criminal complaint in such cases?
A. If it is clearly a matter for the police department in the first instance,

one of our receptionists may make the referral. In other cases, it is normally
one of the deputy attorneys who makes the referral. If a criminal complaint is
warranted, one of the deputy attorneys handles the matter.
Q. Was the prosecution of [defendant] for violation of the Sunday sales law
initiated in response to either an arrest or a citation made or issued by some
member of the police department?
A. No, it was not.
Page 54 of 99
Q. Was the prosecution initiated in response to a complaint from some private
citizen?
A. Yes, it was.
Q. Who was that citizen?
A. It was [name].
Q. Do you recall on what date the original complaint was made by [name]?
A. No, not the exact date, but it was sometime during the week prior to the
citation.
Q. Who issued the citation?
A. [Name], one of the investigators employed by my office, issued the citation.
Q. Did you specifically assign [investigator] to investigate possible violations

by [defendant] of this law?
A. Yes, after the complaint by [name], I asked [investigator] to handle the

matter.
Q. What are the normal responsibilities of [investigator]?
A. He is assigned to investigate various criminal or civil matters where such

investigation appears desirable.
Q. Does your office employ any other investigators?
A. Yes, we have one other investigator in the office.
Q. Are the responsibilities of that investigator substantially the same?
A. Yes, they are, with the exception of supervision. [Name] is the investigator
in charge.
Q. Do these two investigators perform work for deputy attorneys needing

investigative assistance?
A. Yes, they do.
Q. How does a deputy attorney normally secure the assistance of one of the
investigators?
A. If a deputy attorney needs assistance, he or she sends down a written request

to the investigative section, and [chief investigator] either undertakes the
assignment or assigns it to .
Q. Is this the normal manner in which the investigators receive assignments?
A. Well, it is the way that they receive most of their assignments, but I also
have the power to request an investigation if I desire.
Q. During the past year, approximately how many times have you yourself
requested such investigative assistance?
Page 55 of 99
A. I can't really give an approximation, but I have done so several times since
I have held the office.
Q. When you requested [investigator] to investigate [defendant], did you do so

by means of a written request?
A. No, I did not. I made the request orally.
Case Illustration: Significance of special investigation.
In reversing a conviction for refusal to answer census questions, the court

found the inference of discriminatory enforcement almost compelling where, in
addition to evidence showing failure to identify other knowable violators, there
was also evidence that census officials had ordered the preparation of special
background dossiers on persons publicly attacking the census, a discretionary
procedure that was not followed with any other offenders. United States v Steele
(CA9 Hawaii) 461 F2d 1148.
Q. After [investigator] issued the citation, what was the next step in the
prosecution of [defendant]?
A. I filed a criminal complaint the following day.
Q. Do you normally file such complaints yourself?
A. As I indicated earlier, most complaints are filed by deputy attorneys, but I

certainly do file some complaints myself.
Q. Can you tell me the approximate number of complaints that you have personally
filed in the last year?
A. Again, I can't approximate the number, but I have filed several.
Case Illustration: Importance of evidence showing use of special procedures in

prosecuting defendant.
In holding that the defendant, convicted for failure to carry a draft card, had
established a prima facie case of discriminatory enforcement on the basis of his
exercise of First Amendment rights, the court relied on evidence showing that
there were massive unprosecuted violations, that the general government policy
was one of nonprosecution, that an assistant United States attorney had admitted
that the defendant's draft counseling activities were one reason for his
prosecution, and that high-level government officials had participated in the
decision to prosecute the defendant, the court noting that it was difficult to
believe that such procedures were normally followed in a draft case. United
States v Falk (CA7 Ill) 479 F2d 616.
§ 21. Knowledge of political activity by defendant
Q. Prior to your election as city attorney, did you hold any other elective
office in the city of ?
A. Yes, I did.
Page 56 of 99
Q. What other elective office or offices have you held in the city?
A. I was elected to the school board in , and I served on the board for years. I
was then elected to the city council, where I served until my election as city
attorney.
Q. During your terms of service in these various positions, have you ever been
involved in any partisan political activity?
A. Yes, I have.
Q. What is the nature of that activity?
A. I have served on the Party County Committee, and I have also endorsed and
campaigned for various party candidates.
Q. Do you know [name]?
A. Yes, I do.
Q. Have you ever served in any official capacity with him?
A. Yes, we served on the city council together.
Q. [Name] is still on the city council, isn't he?
A. Yes, he is.
Q. He is also active in party politics, isn't he?
A. Yes.
Q. When you ran for the city council did you and he endorse each other and
campaign together?
A. Yes, we did.
Q. When you ran for city attorney, did he support you for that position?
A. Yes, he did.
Q. At the same time, did you support him for reelection to the city council?
A. Yes, I did.
Q. During that election, did you again campaign together with him?
A. Yes.
Q. During the past year, have you become aware of a public controversy
concerning him and his performance as a city councilman?
A. Yes, I have.
Q. Are you aware of certain specific charges that have been leveled against him?
Page 57 of 99
A. I know that some people have accused him of conflicts of interest.
Q. Have you attended city council meetings at which charges of conflict of

interest by him have been raised and discussed?
A. Yes, I have.
Q. Prior to , 20 [date of alleged violation], were you aware that [defendant]

was among those making such charges?
A. Yes, of course I was.
Q. In fact, [defendant] has been among the more vocal critics of [city
councilman], hasn't he?
A. Yes, he has.

had also made highly critical remarks concerning the performance of [city
councilman] in other respects?
A. Yes, I was.
Q. During the period of controversy concerning [city councilman], have you made
public statements in support of him?
A. Yes, I certainly have.
Q. Have you suggested to [city councilman] that he run for mayor next year?
A. No, I have not.
Q. Have you suggested to him that he consider the idea?
A. I have mentioned to him that that was a possibility he might consider, yes.
Q. If he does run for mayor, will you support him?
A. I couldn't possibly answer that without knowing who else was running, but I
certainly do consider him a capable and dedicated public official.
Q. Do you know what political party [defendant] is affiliated with?
A. Yes, he is a .
Q. Prior to , 20 [date of alleged offense], did you ever consider the

possibility that [defendant] might run for the city council?
A. No.
Q. Had you heard any talk prior to that time about such a possibility?
A. I had heard rumors, but that was all.

had made public statements urging the criminal prosecution of, and the recall
from office of, [city councilman]?
Page 58 of 99
A. Yes, I knew that.
Case Illustration: Politically motivated prosecution as discriminatory

enforcement.
In reversing the defendants' convictions under a government regulation

prohibiting loud and unusual noise and obstruction of normal use of the
Pentagon, which convictions were based on several Masses for Peace held on the
Pentagon public concourse, the court found that application of the noise and
obstruction regulation to the defendants was pretensive and improperly motivated
by a desire to inhibit their expression of antiwar views, noting evidence of 16
other approved uses of the concourse during the same time period, some of which
clearly resulted in levels of noise and obstruction greater than any noise and
obstruction the defendants could possibly have created. United States v
Crowthers (CA4 Va) 456 F2d 1074.
—Where the defendant, convicted of unlawfully obstructing a sidewalk by placing

a table on it after being refused a permit by the city council, offered evidence
showing that over a four-and-one-half-year period all 44 sidewalk table
applications received favorable police recommendations, that 36 of the 44
applications were granted by the city council, that six of the eight
applications denied, including the defendant's, were sought for the purpose of
protesting against the controversial Rosenberg case, and that a primary
consideration in the denial of the defendant's applications was disagreement
with the views the defendant wished to espouse, it was held that such facts
would be evidence of discriminatory and unconstitutional application of the
ordinance. People v Amdur, 123 Cal App 2d Supp 951, 267 P2d 445.
D. Testimony of Defendant
§ 22. Previous nonenforcement of law
Q. Where do you presently reside?
A. I live at [address] in the city of .
Q. How long have you lived in the city of ?
A. years.
Q. What is your occupation?
A. I am the owner and operator of the store.
Q. How long have you owned and operated that store?
A. I purchased the store just after I moved here, and I have been running it
ever since.
Page 59 of 99
Q. What type of store is that?
A. It is a variety store, sort of a combination of a drugstore and general

store.
Q. What types of merchandise do you sell there?
A. I can't enumerate everything, but we sell just about everything we can, toys,
cosmetics, clothing, television sets, sporting goods, and a lot of other stuff
in addition.
Q. Have you sold clothing at that store since you first purchased it?
A. Yes, I have.
Q. Have you ever sold clothing on Sundays?
A. Yes.
Q. When did you first begin selling clothing on Sundays?
A. I always have.
Q. Do you know of any other variety stores that sell clothing on Sundays?
A. Yes, I do.
Q. Do you know how many other variety stores in the city of sell clothing on
Sundays?
A. I have never taken a survey, but I know that at least several others do sell
clothing on Sundays, and I don't know of any that does not.
Q. What is the source of your knowledge in this respect?
A. Well, part of my knowledge comes from visiting some of my competitors'

stores, and part of it comes from discussions and conversations with
competitors.
Q. Prior to , 20 [date of alleged violation], did you ever visit a competitor's

store on a Sunday?
A. Yes, I did.
Q. Do you recall how many times previous to that date you visited a competitor's
store on a Sunday?
A. No, but over the years I have visited a great many other stores, both on
Sundays and other days of the week.
Q. Is there any particular reason that you visited such stores?
A. Yes.
Q. What is that reason?
Page 60 of 99
A. It is a good business practice to know what your competitors are doing. For
example, since many people shop on Saturdays and Sundays, it is important to
know whether your competitors are offering any special incentives to customers
on those days.
Q. During the course of any of these visits, did you ever observe clothing being
sold in such stores?
A. Yes, I did, on numerous occasions.
Q. Prior to , 20 [date of alleged violation], did you ever receive any citation
for violation of the Sunday sales law?
A. No.
§ 23. Political activity by defendant
Q. During the time that you have lived and worked here, have you ever engaged in
political activities?
A. Yes, I have.
Q. What was the nature of those activities?
A. Primarily my activity has consisted of giving financial support to candidates

for various offices, and on occasion I have personally campaigned for various
candidates or issues.
Q. Are you a member of any political party?
A. Yes, I am a member of the party.
Q. Have you ever run for any elective office?
A. No, I have not.
Q. During the past year, did you become aware of a controversy involving [city
councilman]?
A. Yes, I did.
Q. Did you subsequently become involved in that controversy?
A. Yes.
Q. What was the nature of your involvement?
A. Essentially, my participation has boiled down to demanding an impartial

investigation of conflict of interest charges against him, and I have taken an
active role in seeking his recall from office.
Page 61 of 99
Q. During the past year, have you made public statements indicating your
position?
A. Yes, I have.
Q. Where have you made the statements?
A. Frankly, I have made them just about wherever I can, in speeches, in city
council meetings, and whenever possible through the news media.
Q. How have you made statements through the news media?
A. I have given interviews and written letters to the editor of the newspaper.
Q. Have your statements to the media been confined to the newspaper?
A. No, I have given interviews to reporters for radio and television stations as
well.
Q. During the month prior to , 20 [date of alleged violation], did your public
opposition to [city councilman] take any new form or direction?
A. Yes, it did.
Q. What was that new form or direction?
A. About three weeks prior to that time I announced the formation of a citizens
group for the recall of Councilman .
Q. Did you do anything further with respect to such a recall prior to , 20 [date
of alleged violation]?
A. Yes, I did.
Q. What did you do?
A. On the Monday before I received the citation, I went down to secure the
necessary papers for a recall petition.
Cases:
In a prosecution for violation of specified city ordinances, after the city

notified defendant that he had 15 days in which to voluntarily comply with those
ordinances, the trial court erred in granting defendant's motion to dismiss on
the ground that the filing of the criminal complaint constituted intentional
discrimination against defendant, notwithstanding that the complaint had been
filed against defendant after he had filed his own complaint in federal court to
challenge the constitutionality of the ordinances and to seek to restrain state
court prosecution. Although defendant alleged that the 15 days had not yet
elapsed when the complaint was filed, it was clear from defendant's actions and
letters from his attorney that he had no intention of complying. Additionally,
defendant was unable to prove causality, inasmuch as the city had notified
defendant that he would be prosecuted before he filed his action in federal
Page 62 of 99
court. Thus, the city did not undertake enforcement actions against defendant in
retaliation for his seeking federal relief; rather, the record showed he had
threatened and filed legal action against the city for trying to enforce its
ordinances. People v Fishel (1991) 1 Cal App 4th Supp 1, 3 Cal Rptr 2d 76, 92
CDOS 2643.
[Top of Section]
[END OF SUPPLEMENT]
§ 24. Prosecutor's admission of improper motive
Q. Prior to the time you took out these papers, had you ever in any way been
warned by any city official or officials that you were violating the Sunday
sales law?
A. No, never.
Q. After you took out the recall papers, and prior to your citation for
violation of that law, did you in any way receive any such warning from any city
official?
A. Well, I was warned that I might face a prosecution, but I wasn't specifically
told on what grounds.
Q. On what date did you receive this warning?
A. It was on the Thursday preceding the issuance of the citation.
Q. From whom did you receive this warning?
A. It was from [prosecutor].
Q. Did you talk to [prosecutor] in person?
A. No, I talked to him on the telephone.
Q. Did he telephone you, or did you telephone him?
A. He telephoned me.
Q. Had you previously talked to [prosecutor] on the telephone?
A. Yes, on several occasions.
Q. Were you acquainted with the sound of his voice?
A. Yes.
Q. When he telephoned you, did he identify himself in any way?
A. Yes, he told me who he was.
Page 63 of 99
Q. Did you recognize his voice?
A. Yes, I did.
Practice Reminder: Need to identify participant to telephone conversation.
A party seeking to introduce evidence of a telephone conversation must first

establish the identity of the parties to the conversation. While some courts
apparently make no distinction between identification of the person called and
that of the person calling, other courts require greater proof of identification
when the call is being introduced against the alleged caller. Generally,
testimony that the witness receiving the call was acquainted with the purported
caller and recognized the voice as that of the purported caller is satisfactory
proof of identification. 29 Am. Jur. 2d, Evidence §§ 381, 383.
Q. What did [prosecutor] tell you at that time?
A. He told me that I was acting totally irresponsibly in seeking to recall

Councilman , and that if I knew what was good for me I would drop the recall
movement and stop spouting off in public.
Q. Did you respond in any way to these statements?
A. Yes, I told [prosecutor] that I believed in what I was doing, and that I had
every right to express myself in the matter.
Q. Did [prosecutor] make any further statements during the telephone

conversation?
A. Yes, he told me that I was witch-hunting, and that two could play that game.
Then he told me to either shut up or be prepared to meet him in court.
Q. Did you respond to those statements?
A. Yes, I told [prosecutor] that I had not done anything wrong and that there
was nothing he could bring me into court for.
Q. Did [prosecutor] say anything further?
A. He again told me to drop the recall movement, and he said that if I did not I
had better check up on the Blue Laws, because he was certainly going to do so.
Then he hung up.
Q. Did [prosecutor] at any time during the conversation indicate to you that a
private complaint had been made by a citizen?
A. No, he did not.
Q. At any time prior to this hearing, did [prosecutor] indicate that he had
received such a citizen complaint?
A. No, he never did.
Q. When did you receive the citation for violation of the Sunday sales law?
A. It was the following Sunday.
Page 64 of 99
III. Proof of Discriminatory Enforcement of Prostitution Laws Against Women
A. Elements of Proof
§ 25. Guide and checklist
The following facts and circumstances, among others, tend to establish that a
statute prohibiting solicitation for prostitution is being discriminatorily
enforced against women as a group without justifiable reasons:
? Police enforcement policy directed at women [§ 26]
? All-male vice division [§ 26]
? All-male undercover decoy officers [§ 26]
? Enforcement statistics showing disproportionate enforcement against women [§

27]
? Existence of male violators [§§ 27, 28, 33]
? Police knowledge of male violators [§§ 27, 28, 34]
? Intentional failure to arrest male violators [§§ 28, 34]
? Intentional failure to investigate information concerning male violators [§§

28, 34]
? Lack of justifiable reasons for selective enforcement against women [§§ 29,
32]
? Use of sexually neutral enforcement policies in comparable jurisdiction [§ 30]
? Enforcement statistics showing male violators in comparable jurisdiction [§

31]
? Greater deterrent effect of sexually neutral enforcement [§§ 29, 32]
[In the following proof it is assumed that selective enforcement against women
of a statute prohibiting solicitation for prostitution is being challenged,
either by means of an action seeking an injunction against such enforcement, or
by way of a defense to a prosecution or prosecutions for solicitation. It is
further assumed that the solicitation statute is facially neutral as to sex.]
B. Testimony of Commander of Vice Division
Page 65 of 99
§ 26. Enforcement policies and procedures directed at women
A. I am employed by the police department of the city of , and I am presently a

lieutenant in charge of the vice division.
Q. Do you know the approximate population of the city of ?
A. Yes, it is about [number].
Q. How long have you headed the vice division?
A. For years.
Q. How long have you been on the police force?
A. years.
Q. How long have you been assigned to the vice division?
A. Altogether, a total of years. I was on the vice division from to , then I was
assigned to various other divisions, and I returned to the vice division as
commander in .
Q. Will you describe generally the law enforcement responsibilities of the vice
division?
A. The primary responsibilities of the division include enforcement of the

prostitution laws, the gambling laws, the pornography laws, and the laws
governing various other related and similar offenses.
Q. In terms of allocation of officers and other resources, can you estimate what
percentage of the division's activities are directed at enforcement of the
prostitution laws?
A. The majority of the vice division's work is in the area of prostitution

control, and I would estimate at least 75 percent of our total man-hours are
related to prostitution control.
Q. How many officers are presently assigned to the vice division?
A. [Number].
Q. Has this number remained substantially the same during the time you have been
commander of the division?
A. Substantially, yes. When I first took over, there were [number] officers
assigned to the division, so there has been a slight increase during the past
years, but the increase has been very gradual and there has been no real
fluctuation in size.
Q. Do any other divisions of the police department have any responsibility for
enforcement of the prostitution laws?
Page 66 of 99
A. No, the vice division is the only one with direct responsibility for
enforcement of the prostitution laws. Of course, any officer can make arrests
for prostitution offenses, but most of the arrests in that area are made by
members of the vice division.
Q. Of the [number] officers presently assigned to the vice division, how many of
them are men?
A. All of them are.
Q. During the period that you have been commander of the division, how many
female officers have been assigned to it?
A. None.
Q. During the time you were previously assigned to the vice division, how many
female officers were assigned to it?
A. None.
Q. In all the years you have been on the police force, can you recall any female
officers who have ever been assigned to the vice division?
A. No, I cannot.
Q. Have you, as commander of the vice division, ever requested the assignment of
female officers to the division?
A. No, I have not.
Q. Have you ever requested the police department to recruit female officers for
the vice division?
A. No.
Q. In the area of prostitution control, is enforcement emphasis placed on any

one or more specific laws?
A. Yes, the primary emphasis is placed on enforcement of the law prohibiting

solicitation for prostitution.
Q. Is there any particular reason for the emphasis on the solicitation statute?
A. Yes, in terms of effective enforcement, violations of the solicitation

statute are easiest to detect and to obtain evidence of, and therefore the
easiest to obtain convictions on. For various reasons, it is much more difficult
to obtain evidence of actual acts of prostitution, so in my opinion it would be
a waste of money and manpower to concentrate on prostitution itself.
Q. With respect to enforcement of the solicitation law, have you instructed your
officers to direct their efforts at any primary target or targets?
A. Yes, I have.
Q. What is that target or targets?
Page 67 of 99
A. The bulk of the enforcement effort is directed at the control of street
prostitution. I would estimate that at least two-thirds of our prostitution
control efforts are in the area of the street prostitute.
Q. Are there any subsidiary targets at which enforcement efforts are directed?
A. There is some enforcement effort directed against the control of call girl
rings and houses of prostitution. Raids of houses of prostitution, or attempts
to crack call girl rings, usually come about as a result of some information we
receive. In other words, we don't look for them, but if we have the information
we check it out. In addition, we also prosecute pimps and panderers whenever we
can obtain sufficient information, but that is very difficult to come by.
Q. You testified that the bulk of your effort was directed at the street
prostitute. Is there any particular method that you use to detect solicitation
violations committed by street prostitutes?
A. Yes, almost all of our solicitation arrests of street prostitutes result from
the use of undercover officers acting as decoys.
Q. Are these decoys members of the vice division?
A. Almost always, yes. We have used officers from other divisions on occasion,
but we do not normally do so.
Q. How many of the decoy officers are men?
A. They all are.
Q. Since you have been commander of the vice division, how many female decoys
have you used in your attempts to control street prostitution?
A. None.
Case Illustration: Failure of police to use female decoys.
In finding discriminatory enforcement of prostitution laws against women, one

court relied heavily on evidence showing the exclusive or nearly exclusive use
of men as undercover decoy officers. United States v Wilson (DC Super) 15 Crim L
2001.
Q. Would you describe the method of operation used by your undercover male
decoys?
A. Basically, it consists of the officer going to an area of the city known to

have a high incidence of prostitution. Depending on the situation, the officer
may cruise the area slowly in an unmarked car, or he may walk the streets. If he
is solicited for prostitution he then makes an arrest.
Q. Have your officers been given any instructions concerning the clothing they
should wear when acting as decoys?
A. Yes, they are told ordinarily to wear high quality but casual clothing, such
as a nice pair of slacks and a good sports shirt. Occasionally we instruct an
officer to go out in a sport coat or business suit.
Page 68 of 99
Q. Is there any particular reason for these instructions as to clothing?
A. Yes, we don't want an officer to look like a bum, since no one would approach
him under those circumstances. In our experience most of the customers are
employed People, and frequently businessmen, and we want the officers to appear
as a customer would.
Q. Do you give your undercover officers any instructions with respect to

approaching suspected prostitutes or engaging them in conversation?
A. The officers are instructed to look interested but not to initiate the
conversation. For example, if an officer sees a suspected prostitute, it is
proper procedure to look her over and either walk or drive by slowly, and
perhaps to turn around and go past her a couple more times. But the officer is
never to say the first word.
Q. So the suspected prostitute always initiates the conversation?
A. Yes, she does.
Q. Is there any common manner in which she does so, or words she commonly speaks
in doing so?
A. There are certain common greetings that prostitutes use to indicate their
availability.
Q. What are those common greetings?
A. Generally, the suspected prostitute will say, "Hi, how are you?" If you
respond favorably to her, she then commonly asks if you want a date, and from
there negotiations proceed concerning the act and the price desired.
Q. What do your officers do after the initial greeting?
A. They are instructed to respond in a friendly manner, and to continue the

conversation until a solicitation is made.
Q. Do the officers ever describe the act and price desired?
A. No, they are specifically instructed not to do so. Any solicitation must come
directly and solely from the suspect.
Q. At what point in the conversation is the officer directed to make the arrest?
A. The officer is to make an arrest when the actual solicitation occurs, which
normally consists either of the suspect quoting a price or asking the officer if
he is willing to pay for a specific act.
§ 27. Enforcement statistics
Q. In your capacity as head of the vice division, do you keep any kind of
records or make any kind of reports on the total number of prostitution-related
arrests?
Page 69 of 99
A. Yes, I do. I prepare an annual report for the chief of police concerning the
total number of arrests made by the vice division during the year, and that
report contains a breakdown with respect to various types of arrests.
[Counsel requests Court Reporter to mark report as exhibit.]

Q. I show you defendant's Exhibit for identification and ask if you can identify
it.
A. Yes, that is my annual report for last year.
Q. Does that report contain statements of the number of arrests for

prostitution-related offenses last year?
A. Yes, it does.
Counsel: I offer defendant's Exhibit for identification in evidence as

defendant's Exhibit .
The Court: It may be admitted.
Practice Reminder: Admissibility of reports of public officials.
All records and reports prepared by public officials are generally admissible as
proof of the facts stated therein, so long as the facts stated are within the
personal knowledge of the recording official or his subordinates, and so long as
the records are properly identified or authenticated. See 29A Am. Jur. 2d,
Evidence §§ 991, 996.
Q. I would like to direct your attention now to that report. Does that contain
the total number of arrests last year for prostitution and prostitution-related
offenses?
A. Yes, it does.
Q. What was the total number of arrests?
A. [Number].
Practice Reminder: Admissibility of oral testimony concerning arrests.
Where the facts contained in a writing exist independently of the writing, such
facts may be proved both by the writing, if properly authenticated and
admissible, and by oral testimony. The best evidence rule is inapplicable in
such a situation, since the oral testimony is offered to prove the existence of
the independent facts, not the existence or contents of the writing. See 29 Am.
Jur. 2d, Evidence § 449; 2 Jones on Evidence (6th ed.) § 7:4. If objection is
made to the fact that the testimony concerning arrests is based on the
statistics contained in the report, it might be necessary to qualify the report
as past recollection recorded or to show that it is necessary to refresh the
memory of the witness. See 29A Am. Jur. 2d, Evidence §§ 876, 877.
Q. Of that number, how many of the arrestees were women, and how many were men?
A. There were [number] women arrested and [number] men arrested.
Page 70 of 99
Q. Does the report also contain the total number of arrests for solicitation for
prostitution last year?
A. Yes, there were [number] arrests for solicitation last year.
Q. Does the report indicate what percentage of the total number of prostitution-
related arrests were for solicitation for prostitution?
A. Yes, arrests for solicitation constituted percent of the total arrests in

that area.
Q. Does the report indicate how many of those arrested for solicitation were
women, and how many were men?
A. Yes, it does.
Q. How many were women, and how many men?
A. All the arrests for solicitation were of women.
Q. Does the report indicate the number of arrests for solicitation that were
effected by decoy officers?
A. Yes, [number] of the solicitation arrests were made by undercover decoy

officers.
Q. Does the report indicate what percentage of the total number of solicitation
arrests were effected by decoy officers?
A. Yes, percent of the total number of solicitation arrests were made by

undercover decoy officers.
Q. Does the report contain any breakdown concerning arrests for solicitation
other than by decoy officers?
A. Yes, the report breaks solicitation arrests down into three categories: decoy
arrests, "trick" arrests, and all other arrests.
Q. Would you explain what you mean by a "trick" arrest?
A. Yes, those are arrests that are made in a situation where an apparent
customer is with an apparent prostitute.
Q. How many arrests were made in "trick" situations last year?
A. [Number].
Q. And all of these arrests occurred where there was an apparent customer and an
apparent prostitute together, is that correct?
A. Yes, that's correct.
Q. Of the total number of "trick" arrests made last year, how many were men and
how many were women?
A. All the arrestees were women.
Page 71 of 99
Q. Are the practices and procedures used by the vice division in prostitution
control substantially the same this year as they were last year?
A. Yes, they are.
Q. To your knowledge, have any men been arrested for solicitation for
prostitution this year?
A. No, there have not been any arrests of men for solicitation violations.
Q. With respect to prostitution-related offenses other than solicitation, you

indicated that [number] men were arrested. Does the report indicate the exact
offenses for which the men were arrested?
A. Yes, it does.
Q. Could you tell us what types of offenses the men were arrested for?
A. Yes, all the arrests of males were for pandering or pimping.
[Counsel proceeds in the same manner with respect to annual reports for
preceding years.]
§ 28. Failure to arrest male customers
Q. You testified that in so-called trick cases, where there is both an apparent
male customer and an apparent prostitute, you arrested only the apparent
prostitute. Is the arrest of the apparent prostitute in such a situation
pursuant to established department policy?
A. Yes, it is our policy to go after the prostitute.
Q. In any of these "trick" cases, is the apparent male customer ever discovered
in the room with the apparent prostitute?
A. Yes, that is frequently the case.
Q. In such situations, is the apparent male customer ever undressed?
A. Yes, on occasion he is.
Q. In "trick" cases, does the apparent male customer ever admit to having
engaged in an act of prostitution with the female suspect?
A. Yes, on occasion.
Q. Has a vice division officer ever observed an apparent male customer engaging
in an act of sexual intercourse with the female suspect?
A. Yes, our officers have on occasion observed that.
Q. Has the apparent male customer ever been arrested in any of the above
situations?
A. Not that I know of.
Page 72 of 99
Q. Is the apparent female prostitute normally arrested in such situations?
A. Yes, she is.
Q. If there is a trial on the charge, is the apparent male customer normally the
main witness against the prostitute?
A. Yes.
Q. Do vice division officers ever promise not to prosecute or arrest the male
customer on condition that he testify against the apparent prostitute?
A. Yes, that is permitted, in order to obtain evidence.
Q. Is the apparent prostitute ever offered a similar choice of testifying

against the customer?
A. No, she is not.
Q. You testified earlier that your officers on occasion raid suspected houses of
prostitution, is that correct?
A. Yes, that is right.
Q. You testified further that your officers sometimes attempt to break call girl
rings, is that correct?
A. Yes, that is right.
Q. Do such investigations of call girl rings normally involve an officer going

to the house or apartment of a suspected call girl?
A. Yes, that is the normal method of procedure.
Q. Do your officers, in raiding suspected houses of prostitution, or in going to

the residences of suspected call girls, ever conduct searches of the premises?
A. Yes, they do.
Q. Do your officers, in the course of such searches, ever seize what appear to
be lists of male customers?
A. Yes, on occasion they do.
Q. Do you, or your officers, ever make any effort to determine whether any of
the men whose names are on such lists may be guilty of prostitution-related
offenses?
A. No, we do not.
Case Illustration: Failure to follow up leads on male customers.
In finding discriminatory enforcement of prostitution laws against women, the

court relied on evidence showing not only that it was the policy of the vice
squad not to arrest men on the streets looking for women, but also that the
police never sought to identify or interview men found in suspected houses of
Page 73 of 99
prostitution, and never made any effort to pursue leads provided by lists of
male customers. United States v Wilson (DC Super) 15 Crim L 2001.
§ 29. Lack of justifiable reasons for selective enforcement of law
Q. According to your testimony so far, the overwhelming number of prostitution-

related arrests are of women, and all of the arrests for solicitation for
prostitution are of women, is that correct?
A. Yes, that is correct.
Q. Is it your policy to arrest only women for solicitation?
A. Yes, it is.
Q. Is it your policy to arrest any women soliciting for prostitution?
A. Yes, it is.
Q. To your knowledge, is there any significant organized crime problem in this

city with respect to prostitution?
A. Well, not to the extent that there is any organization controlling

prostitution, no. I do believe prostitution is a problem in itself.
Q. But your concentration on women, rather than men, is not part of any effort
to eliminate any organized crime in the city, is it?
A. No, it is not.
Case Illustration: Importance of showing lack of organized commercial

prostitution.
In one case the court held that a showing of selective and persistent
discriminatory enforcement of prostitution laws against women created a prima
facie case of discriminatory enforcement, shifting the burden to the state, but
that a desire to combat organized commercial prostitution might be a valid
reason for such selectivity. State v Johnson, 74 Wis 2d 169, 246 NW2d 503.
Q. Is there any major reason behind your decision to concentrate your efforts on
women prostitutes?
A. Yes, there is.
Q. What is that reason?
A. Our primary reason for concentrating on street prostitutes is the factor of

deterrence. By concentrating our enforcement efforts in that area, we try to
keep prostitution within manageable bounds. A second reason is the desire to
control the spread of venereal disease, through compulsory testing of
prostitutes and treatment if necessary.
Q. In your experience, has the emphasis on street prostitution reduced the

overall incidence of prostitution?
Page 74 of 99
A. That is really hard to say. While the problem of prostitution is probably as
great now as it ever has been, in my opinion it would be totally out of control
without any enforcement at all.
Q. To your knowledge, is there a high rate of recidivism among arrested or

convicted prostitutes?
A. Yes, there definitely is.
Q. With respect to venereal disease, does the police department keep any records
concerning the number of women arrested for prostitution-related offenses who
have infectious venereal disease?
A. No, it does not.
Q. During the time you have been commander of the vice division, have you
attempted to gather any statistics concerning the incidence of venereal disease
among arrested prostitutes?
A. No, I have not.
Q. Do you have any knowledge from any source concerning the incidence of
venereal disease among arrested prostitutes in the city of ?
A. No, I do not.
Case Illustration: Control of venereal disease as insufficient explanation for

discriminatory enforcement.
Where evidence revealed that only one or two women out of hundreds arrested had
infectious syphilis, and slightly more than five percent had gonorrhea, it was
held that control of venereal disease was not a sufficiently compelling state
interest to justify the application of prostitution laws only to women. State v
Fields (Alaska Dist Ct) 13 Crim L 2376.
C. Testimony of Commander of Vice Division in Comparable Jurisdiction
§ 30. Use of sexually neutral enforcement policies
A. I am a captain in the police department of the city of , presently assigned

as the commander of the vice division.
Q. How long have you been so assigned?
A. years.
Q. How long have you been on the police force of the city of ?
A. For years.
Page 75 of 99
Q. How large is the city of ?
A. As of the last census, there were people living in the city.
Q. What are the functions and responsibilities of the vice division?
A. The vice division has primary responsibility for enforcement of all

antiprostitution laws, obscenity laws, the gaming laws, and various other
similar types of laws.
Q. Approximately what percentage of the enforcement efforts of the vice division

are devoted to prostitution control?
A. I would say easily three-fourths of our work is in that area.
Q. In your prostitution control efforts, do you place emphasis on any particular

type of offense?
A. Yes, the bulk of our enforcement effort is related to the law prohibiting
solicitation for prostitution.
Q. How many officers are presently assigned to the vice division?
A. At present, we have [number] officers.
Q. How many of those officers are women?
A. [Number].
Q. Have there been female officers in the vice division since you became
commander?
A. No, the division consisted entirely of male officers when I took over.
Q. When did you first obtain female officers in the division?
A. It was approximately years ago.
Q. Do you employ undercover officers in the enforcement of the solicitation law?
A. Yes, that is our primary method of detecting violations and securing arrests.
Q. Would you describe the manner in which such undercover officers operate?
A. Basically, they go to areas known to have a high incidence of prostitution,

where they act as decoys in the hope of being solicited.
Q. How many officers are assigned to such undercover decoy work?
A. The number varies from time to time, but generally about [number] of the
officers in the division are assigned in such a manner.
Q. Of that number, how many of the undercover officers are females?
A. That varies also, depending on various factors, but we generally have about
an even number of male and female undercover officers working the streets.
Page 76 of 99
§ 31. Enforcement statistics
Q. In connection with your job, do you keep any kind of records or make any kind
of reports on the total number of prostitution-related arrests made by the vice
division?
A. Yes, I do. I make monthly reports to the chief, and I also make a cumulative
annual report each year.
[Counsel requests Court Reporter to mark report as exhibit.]

Q. I show you defendant's Exhibit for identification and ask if you can identify
it.
A. Yes, that is my annual report for the year .
Q. During that year, did you have any female vice officers?
A. No, we did not.
Q. During that year, did you use any female officers as decoys in enforcement of
the solicitation law?
A. No, all decoy officers that year were men.
Q. Does that report contain breakdowns with respect to the total number of
prostitution and prostitution-related arrests, including classification as to
the type of offense and the sex of the offender?
A. Yes, it does.
[Counsel offers report into evidence, as in § 27, supra.]

[Counsel proceeds to elicit information concerning the total number of
prostitution related arrests, the number of arrests for solicitation, the number
of arrestees who were men and women, the number of arrests effected by use of
decoys, and similar information, as in § 27, supra. Counsel also introduces and
elicits similar information concerning other annual reports made for years prior
to adoption of a neutral enforcement policy.]
[Counsel requests Court Reporter to mark exhibit.]
Q. I show you now defendant's Exhibit for identification and ask if you can
identify it.
A. Yes, that is my annual report for the year .
Q. During that year, did you have female vice officers and utilize female
undercover officers in enforcement of the solicitation law?
A. Yes, we did.
Q. Does that report contain the same type of information as that contained in
defendant's Exhibits through ?
A. Yes, it does.
[Counsel offers report into evidence, as in § 27, supra.]
Page 77 of 99
[Counsel proceeds to elicit the same information elicited with respect to annual
reports made for years prior to adoption of a neutral enforcement policy, and
introduces and elicits information concerning other annual reports for years
following adoption of a sexually neutral enforcement policy.]
§ 32. Deterrent effect of sexually neutral enforcement
Q. In the field of prostitution control, do you have any broad policy goals?
A. Yes, I do.
Q. What are those goals?
A. The primary goal of the division is to reduce the overall incidence of

prostitution, and in connection with that goal the division also seeks to
eliminate or minimize so-called prostitution zones.
Q. Are those goals considerations in determining the method of operation and

allocation of resources within the vice division?
A. Yes, those are the primary considerations.
Q. During the years through 20 [years prior to neutral enforcement policy], was
there any increase in the number of prostitution-related arrests?
A. Yes, there was an average annual increase of approximately percent during

those years, and a cumulative increase of approximately percent.
Q. During those years, was there any increase in the number of so-called
prostitution zones within the city of ?
A. Yes, there was. In the primary area known for prostitution was the area, but
by Street and the area had also developed high rates of prostitution and were
commonly considered prostitution zones.
Q. During the years to 20 [years of sexually neutral enforcement policies], has

there been any increase in the total number of prostitution-related arrests?
A. No, there has been what I consider a rather drastic decrease in the overall
number of arrests.
Q. During those years, has there been any increase in the number of prostitution
zones within the city of ?
A. No, as of now there is no known prostitution zone within the city. That does
not mean that we have eliminated prostitution in the city, but in my opinion we
have sharply reduced it and forced most of it off the streets.
Q. During the years you have been commander of the vice division, what has been
the rate of recidivism among arrested prostitutes?
A. It has been very high, probably close to 100 percent in fact.
Q. Has that rate of recidivism remained fairly constant?
A. Yes, it has.
Page 78 of 99
Q. During those years, what has been the rate of recidivism among males arrested
for solicitation or other prostitution-related offenses?
A. To my knowledge, there has been no recidivism among males. I do not believe

we have ever arrested the same man twice.
Q. In your opinion, is there any major factor that has been responsible for the
decline in solicitation and other prostitution related arrests in the city of ?
A. Yes, I most definitely think there is.
Q. In your opinion, what is that factor?
A. I believe the use of female officers, especially in an undercover status, has

been the predominant reason for the decline in prostitution in the city of .
Case Illustration: Deterrent effect of arresting male customers:
In one case the court, while not faced directly with a problem of discriminatory
enforcement, was strongly critical of a prostitution statute applying only to
females, the court noting that enforcement against men would probably sharply
reduce the number of men searching for prostitutes. State v McGhee (Mil City Ct
Wis) 15 Cr L 2315.
D. Testimony of Investigator
§ 33. Violations of statute by men
Q. Where do you presently live?
A. At [address].
A. I am a private investigator.
Q. By whom are you employed?
A. I am self-employed.
Q. Where is your office located?
A. At [address].
Q. What type of investigations do you conduct?
A. I restrict my work to criminal investigations.
Q. How long have you been a private investigator?
A. years.
Page 79 of 99
Q. How many investigations have you personally conducted during that time?
A. I would estimate approximately .
Q. Do you employ any other private investigators?
A. I employ one other investigator on a half-time basis, and on occasion I

utilize other investigators on a particular case.
Q. Do you have a license as a private investigator?
A. Yes, I have a license from the [appropriate agency].
Q. How long have you been so licensed?
A. years.
Q. At my request, did you conduct an investigation concerning solicitation for

prostitution in the city of ?
A. Yes, I did.
Q. And also at my request, did you limit your investigation to one particular
facet of that subject?
A. Yes, I did.
Q. Would you please describe what that investigation concerned?
A. Yes. At your request I undertook to determine whether, and to what extent,

men were guilty of soliciting women for prostitution in various areas of the
city known to have a high rate of prostitution.
Q. Would you describe the manner in which you conducted that investigation?
A. Yes, on [number] occasions I went to various areas in the city, and either
walked up and down the sidewalk or simply stayed at a certain spot on the
sidewalk, in an effort to determine whether any men would solicit me for
prostitution.
Q. On those occasions, did you wear any particular clothing?
A. Yes, I wore [description of clothing].
Q. What was the purpose in wearing such clothing?
A. That is the type of clothing that prostitutes are commonly reputed to wear
when working.
Q. Do you recall the date that you first went to such an area?
A. Yes, it was on , .
Q. What area did you go to on that date?
A. I went to what is commonly called the area.
Page 80 of 99
Q. Why did you pick that area?
A. That area is known to have a high rate of prostitution, and a great many
solicitation arrests of alleged prostitutes are made there.
Q. What time of the day did you go there?
A. I went there at o'clock in the evening, and I stayed for one hour.
Q. What did you do during that hour?
A. Most of that time I stood on the sidewalk in front of the Motel and faced in
the direction of oncoming automobile traffic.
Q. During that hour, did you have conversations with any men?
A. Yes, I did.
Q. Do you recall the number of men with whom you had conversations?
A. Yes, there was a total of men.
Q. Who initiated those conversations?
A. In each case it was the man who initiated it.
Q. Were these men on foot or in automobiles when they began the conversations?
A. [Number] were on foot, and [number] were in cars.
Q. Did those men who were in cars talk to you while driving, or did they stop
the automobile?
A. They stopped their car in the parking lane, and talked to me while stopped.
Q. During the course of your conversations with these [mumber] men, did you ever
in any way verbally suggest to them that you were available for prostitution?
A. No, I did not.
Q. Did any of these men ever in any way request you to perform an act of
prostitution?
A. Yes, they all did.
Q. Did any of these men suggest either a specific act or a specific price that
they were willing to pay?
A. Yes, each of them did.
Case Illustration: Importance of proving violations of statute by men.
Some courts have said that it is contrary to human experience to assume that
only women solicit for prostitution. United States v Wilson (DC Super) 15 Cr L
2001; State v Fields (Alaska Dist Ct) 13 Cr L 2376. However, one court found no
unconstitutional discriminatory enforcement, notwithstanding overwhelming
Page 81 of 99
evidence of intentional selective enforcement of a solicitation law against
women, the court relying on a lack of evidence concerning the number of male
violators and stating that it appeared probable that more women solicited than
men. Re G., Cal App 3d 725, 126 Cal Rptr 118. Since a particular court may
refuse to assume that men solicit, it is important to present evidence of
solicitation by men.
§ 34. Police knowledge of violations by men
Q. Did you in any way keep records of these conversations?
A. Yes, I kept a written record concerning each conversation that resulted in

what I considered a solicitation for prostitution.
Q. How did you maintain these written records?
A. After a particular man departed, I would go into the telephone booth up the
street, and while pretending to write down a telephone number I would jot down
certain information concerning that conversation.
Q. What information did you write down?
A. In each instance I wrote down the particular solicitation made. In addition,

where a man either stopped in a car or, after approaching me on foot, left in a
car, I memorized the license number and then wrote the number down while in the
telephone booth. In those instances I also wrote a brief description of the man.
Q. Did you ever communicate with the police department concerning this?
A. Yes, I went to the police department the following day and offered them my
information.
Q. To whom did you speak at the police department?
A. I talked to [commander of vice division].
Q. What information did you offer Lieutenant ?
A. I offered to give him the written information I have just referred to.
Q. Did you request him to investigate these men for possible violations of the
solicitation law?
A. Yes, I asked him to investigate and told him I was willing to be a witness
against the men.
Q. Did Lieutenant respond to you?
A. Yes, in essence he told me to get out of his office.
Q. Did he accept the written information you offered him?
A. No, he did not.
[Counsel requests Court Reporter to mark exhibits.]
Page 82 of 99
Q. I show you now defendant's Exhibit for identification and ask if you can
identify it.
A. Yes, that is one of the slips that I prepared concerning a conversation I had
with a man during the evening of , .
Q. Did you prepare this writing immediately after the conversation with the man?
A. Yes, as I indicated, I prepared it in the telephone booth.
Q. Does this writing contain the substance of the conversation you had with that
man?
A. Yes, it does.
Q. Does it contain a description of that man?
A. Yes, it does.
Q. Does it contain an automobile license number?
A. Yes, it does.
Q. Where did you get the license number?
A. I took it from the car the man was driving.
[Counsel offers exhibit into evidence, as in § 27, supra.] [Counsel proceeds to

identify and offer into evidence other written reports made by investigator on
first occasion. Counsel then proceeds to elicit similar information concerning
other occasions on which investigator acted as decoy.]
Q. Did you ever offer to assist the police department in detecting unlawful
solicitation for prostitution by men?
A. Yes, I offered my assistance when I talked to Lieutenant on , .
Q. In what way did you offer to assist?
A. I told Lieutenant that I would act as a decoy for the department, without
charge.
Q. Did Lieutenant accept your offer?
A. No, he did not.
A.L.R. Library
Disqualification of prosecuting attorney in state criminal case on account of

relationship with accused, 42 A.L.R. 5th 581
Actions by state official involving defendant as constituting "outrageous"

conduct violating due process guaranties, 18 A.L.R. 5th 1
Page 83 of 99
What constitutes such discriminatory prosecution or enforcement of laws as to
provide valid defense in state criminal proceedings, 95 A.L.R. 3d 280
Comment Note.—Preconviction procedure for raising contention that enforcement of

penal statute or law is unconstitutionally discriminatory, 4 A.L.R. 3d 404
What conduct of federal law enforcement authorities in inducing or co-operating

in criminal offense raises due process defense distinct from entrapment, 97
A.L.R. Fed. 273
What constitutes such discriminatory prosecution or enforcement of laws as to

provide valid defense in federal criminal proceedings, 45 A.L.R. Fed. 732
Legal Encyclopedias
Discriminatory administration of law as denial of equal protection of the law,

generally, 16 Am. Jur. 2d, Constitutional Law §§ 540, 541
Discriminatory enforcement of criminal law as denial of equal protection of the

law, 21 Am. Jur. 2d, Criminal Law § 231
Injunctive relief against discriminatory enforcement of criminal laws, 42 Am.

Jur. 2d, Injunctions §§ 181, 188, 243
Treatises and Practice Aids
Prisoners and the Law
Gershman, Prosecutorial Misconduct
Torcia, Wharton's Criminal Law (14th ed.)
Torcia, Wharton's Criminal Procedure (13th ed.)
Trial Strategy
Defense to Charges of Sex Offense, 24 Am. Jur. Proof of Facts 2d 515
Page 84 of 99
Reliability of Polygraph Examination, 14 Am. Jur. Proof of Facts 2d 1
Discrimination in Jury Selection—Systematic Exclusion or Underrepresentation of

Identifiable Group, 9 Am. Jur. Proof of Facts 2d 407
Habeas Corpus: Pretrial Rulings, 41 Am. Jur. Trials 349
Historical Aspects and Procedural Limitations of Habeas Corpus, 39 Am. Jur.

Trials 157
Handling the Defense in a Bribery Prosecution, 37 Am. Jur. Trials 273
Law Reviews and Other Periodicals
Amsterdam, The One-Sided Sword: Selective Prosecution in Federal Courts, 6

Rutgers Camden L J 1
Comment, Prostitution and the Law: Emerging Attacks on the "Women's Crime," 43
UMKC L Rev 413
Comment, Defense Access to Evidence of Discriminatory Prosecution, 1974 U Ill L

F 648
Enforcing bias-crime laws without bias: evaluating the disproportionate-

enforcement critique, 66 Law & Contemp. Probs. 49 (2003 WL 21680849)
Givelber, The Application of Equal Protection Principles to Selective

Enforcement of the Criminal Law, 1973 U Ill L F 88
Homicide on holiday: prosecutorial discretion, popular culture, and the

boundaries of the criminal law, 54 Hastings L.J. 1641 (2003 WL 23220314)
LAPD denies it still practices illegal profiling but prejudice drives system,
4/12/2001 L.A. Daily J. 6 (2001)
Let's play jeopardy: Where the question comes after the answer for stopping
prosecutorial misconduct in death-penalty cases, 28 N. Ky. L. Rev. 34 (2001)
Lethal decision: examining the role of prosecutorial discretion in capital cases

in South Dakota and the federal justice system, 50 S.D. L. Rev. 550 (2005 WL
2119979)
Page 85 of 99
Comment, Murguia v Municipal Court: California Recognizes the Defense of
Discriminatory Prosecution, 6 Golden Gate U L Rev 885
Note, Development of the Defense of Discriminatory Prosecution: Murguia v

Municipal Court, 8 Sw U L Rev 687
Plea-agreement admissibility on direct exam of cooperating witness, 3/9/2001

N.Y. L.J. 3 (2001)
Police told to cease selective lewd conduct enforcement, 2/28/2001 L.A. Daily J.
1 (2001)
Pretextual prosecution, [Al Capone], 92 Geo. L.J. 1135 (2004 WL 3312551)
Prosecutorial discretion in Connecticut: a lesson in indirect constraint, 15

Fed.Sent.R. 209 (2003 WL 23163926)
Prosecutorial discretion: what's politics got to do with it? 18 Geo. J. Legal

Ethics 739 (2005 WL 1452129)
Prosecutorial misconduct in Kansas: still hazy after all these years, 41

Washburn L.J. 245 (2002 WL 1917415)
Recognizing the significance of prosecutorial discretion in a multi-layered

antitrust enforcement world, 11 Geo. Mason L. Rev. 121 (2002 WL 32356990)
Regulating federal prosecutors' ethics, 55 Vand. L. Rev. 381 (2002 WL 538321)
Russo, Equal Protection From the Law: The Substantive Requirements for a Showing
of Discriminatory Law Enforcement, 3 Loyola U L Rev 65
Screening versus plea bargaining: exactly what are we trading off? 55 Stan. L.
Rev. 1399 (2003 WL 21498815)
Selective enforcement of the immigration laws: is there any possible external

constraint on the exercise of prosecutorial discretion? 18 Geo. J. Legal Ethics
639 (2005 WL 1412555)
State Settles Profiling Claim of Minority Motorist for $340,000, 1/1/2001

N.J.L.J. 7 (2001)
Page 86 of 99
Comment, The Ramifications of United States v. Falk on Equal Protection from
Prosecutorial Discrimination, 65 J Crim L 62
The regulation of federal prosecutorial misconduct by state bar associations: 28

U.S.C. $s;530B and the reality of inaction, 49 UCLA L. Rev. 625 (2001 WL
1628914)
The Yale Rosenberg memorial lecture: taking prosecutorial ethics seriously: a

consideration of the prosecutor's ethical obligations to seek justice in a
comparative analytical framework, 41 Hous. L. Rev. 1337 (2004 WL 3152298)
Tieger, Police Discretion and Discriminatory Enforcement, 1971 Duke L J 717
Unequal justice: the Supreme Court's failure to curtail selective prosecution

for the death penalty, 93 J. Crim. L. & Criminology 1009 (2003 WL 23473026)
Weissman, The Discriminatory Application of Penal Laws by State Judicial and

Quasi-Judicial Officers: Playing the Shell Game of Rights and Remedies, 69 Nw U
L Rev 489
Race-Based Policing: A Descriptive Analysis of the Wichita Stop Study, 5(3)

Police Prac. & Res. 223 (2004)
--------------------------------------------------------------------------------
Section 1 Footnotes:
[FN1]
A.L.R. Library
Comment Note.—Preconviction procedure for raising contention that enforcement of

penal statute or law is unconstitutionally discriminatory, 4 A.L.R. 3d 404.
[FN2] Amsterdam, The One-Sided Sword: Selective Prosecution in Federal Courts, 6

Rutgers Camden L J 1, 6–7; Weissman, The Discriminatory Application of Penal
Laws by State Judicial and Quasi-Judicial Officers: Playing the Shell Game of
Rights and Remedies, 69 Nw U L Rev 489, 498–99.
[FN3] Amsterdam, 6 Rutgers Camden L J 1, 2; Weissman, 69 Nw U L Rev 489, 499–

501.
[FN4] Amsterdam, 6 Rutgers Camden L J 1, 3.
4 A.L.R. 3d 404.
Page 87 of 99
[FN5] Amsterdam, 6 Rutgers Camden L J 1, 5–6; United States v Crowthers (CA4 Va)
456 F2d 1074.
4 A.L.R. 3d 404.
[FN6] Amsterdam, 6 Rutgers Camden L J 1, 5–6; Givelber, The Application of Equal

Protection Principles to Selective Enforcement of the Criminal Law, 1973 U Ill L
F 88, 90.
[FN7] Weissman, 69 Nw U L Rev 489, 503.
Legal Encyclopedias
16 Am. Jur. 2d, Constitutional Law § 541.
See also, §§ 5– 8, infra.
[FN8] Givelber, 1973 U Ill L F 88, 89; Note, Development of the Defense of
Discriminatory Prosecution: Murguia v Municipal Court, 8 Sw U L Rev 687, 693–94;
Weissman, 69 Nw U L Rev 489, 503.
See also, §§ 6– 8, infra.
[FN9] 16 Am. Jur. 2d, Constitutional Law § 540.
[FN10] Yick Wo v Hopkins, 118 US 356, 30 L Ed 220, 6 S Ct 1064; People v Amdur,

123 Cal App 2d Supp 951, 267 P2d 445.
[FN11] United States v Crowthers (CA4 Va) 456 F2d 1074.
[FN13] See § 4, infra.
[FN14] See §§ 9, 10, infra.
[FN15] See § 12, infra.
[FN16] Comment, The Ramifications of United States v Falk on Equal Protection

From Prosecutorial Discrimination, 65 J Crim L 62, 64–65, 74; Tieger, Police
Discretion and Discriminatory Enforcement, 1971 Duke L J 717, 743; Weissman 69
Nw U L Rev 489, 509–10.
Page 88 of 99
[FN17]
4 A.L.R. 3d 404.
[FN18] Comment, 65 J Crim L 62, 63; Murgia v Municipal Court, 15 Cal 3d 286, 124
Cal Rptr 204, 540 P2d 44.
[FN19] Murguia v Municipal Court for Bakersfield Judicial Dist., 15 Cal 3d 286,
124 Cal Rptr 204, 540 P2d 44.
124 Cal Rptr 204, 540 P2d 44.
[FN22] Amsterdam, 6 Rutgers Camden L J 1, 4; United States v Falk (CA7 Ill) 479
F2d 616.
[FN23] Givelber, 1973 U Ill L F 88, 96.
[FN24] Ibid.; Tieger, 1971 Duke L J 717, 730–31.
[FN25] Amsterdam, 6 Rutgers Camden L J 1, 10–13; Givelber, 1973 U Ill L F 88,

97; Murgia v Municipal Court, for Bakersfield Judicial Dist., 15 Cal 3d 286, 124
Cal Rptr 204, 540 P2d 44.
[FN26] Amsterdam, 6 Rutgers Camden L J 1, 11–13; Comment, Defense Access to

Evidence of Discriminatory Prosecution, 1974 U Ill L F 648, 652.
See, for example, United States v Falk (CA7 Ill) 479 F2d 616; United States v
Steele (CA9 Hawaii) 461 F2d 1148; United States v Crowthers (CA4 Va) 456 F2d
1074; People v Amdur, 123 Cal App 2d Supp 951, 267 P2d 445.
[FN27] Comment, 1974 U Ill L F 648, 652; Givelber, 1973 U Ill L F 88, 89, 94.
124 Cal Rptr 204, 540 P2d 44.
[FN29] Comment, Prostitution and the Law: Emerging Attacks on the "Women's
Crime," 43 UMKC L Rev 413, 417–420.
See, for example, State v Johnson, 74 Wis 2d 169, 246 NW2d 503.
[FN30] Re G., 53 Cal App 3d 725, 126 Cal Rptr 118.
Page 89 of 99
[FN31] Tieger, 1971 Duke L J 717, 720–721; Weissman, 69 Nw U L Rev 489, 493.
[FN32] Givelber, 1973 U Ill L F 88, 103–04; Tieger, 1971 Duke L J 717, 720–21.
[FN33] Givelber, 1973 U Ill L F 88, 102–04.

See, for example, Lewis v Kugler (CA3 NJ) 446 F2d 1343.
For discussion of the distinction between permissible selectivity and arbitrary
discrimination, see §§ 5– 8, infra.
[FN34] Amsterdam, 6 Rutgers Camden L J 1, 14–15; Weissman, 69 Nw U L Rev 489,

493.
[FN36] Yick Wo v Hopkins, 118 US 356; People v Amdur, 123 Cal App 2d Supp 951,
267 P2d 445.
124 Cal Rptr 204, 540 P2d 44.
[FN38] Givelber, 1973 U Ill L F 88, 102–04; Russo, Equal Protection From the
Law: The Substantive Requirements For a Showing of Discriminatory Law
Enforcement, 3 Loyola U L Rev 65, 70–71; Tieger, 1971 Duke L J 717, 732.
[FN39] People v Acme Markets, Inc., 37 NY2d 326, 372 NYS2d 590, 334 NE2d 555.
[FN40]
4 A.L.R. 3d 404.
Comment, 65 J Crim L 62, 72; Weissman, 69 Nw U L Rev 489, 517–19.
[FN41]
4 A.L.R. 3d 404.
[FN42] Weissman, 69 Nw U L Rev 489, 517–19; Lewis v Kugler (CA3 NJ) 446 F2d
1343.
[FN43]
4 A.L.R. 3d 404.
[FN44] Comment, 1974 U Ill L F 648, 650–51.
Page 90 of 99
4 A.L.R. 3d 404.
See, for example, Murguia v Municipal Court for Bakersfield Judicial Dist., 15
Cal 3d 286, 124 Cal Rptr 204, 540 P2d 44; People v Goodman, 31 NY2d 262, 338
NYS2d 97, 290 NE2d 139; People v Utica Daw's Drug Co., 16 App Div 2d 12, 225
NYS2d 128, 4 ALR3d 393.
[FN45]
4 A.L.R. 3d 404.
Legal Encyclopedias
42 Am. Jur. 2d, Injunctions § 243.
[FN46]
4 A.L.R. 3d 404.
[FN47]
4 A.L.R. 3d 404.
Legal Encyclopedias
42 Am. Jur. 2d, Injunctions § 243.
[FN48] Weissman, 69 Nw U L Rev 489, 517–19.
[FN49] Lewis v Kugler (CA3 NJ) 446 F2d 1343.
[FN50] Comment, 65 J Crim L 62, 72.
[FN51] Comment, 65 J Crim L 62, 72; People v Utica Daw's Drug Co., 16 App Div 2d
12, 225 NYS2d 128, 4 ALR3d 393.
[FN52] People v Utica Daw's Drug Co., 16 App Div 2d 12, 225 NYS2d 128, 4 ALR3d
393.
[FN53]
4 A.L.R. 3d 404.
Page 91 of 99
[FN54] Givelber, 1973 U Ill L F 88, 92–93.
4 A.L.R. 3d 404.
4 A.L.R. 3d 404.
Legal Encyclopedias
16 Am. Jur. 2d, Constitutional Law § 541.
[FN56] Comment, 1974 U Ill L F 648, 651; Note, 8 Sw U L Rev 687, 693–94.
4 A.L.R. 3d 404.
124 Cal Rptr 204, 540 P2d 44.
[FN58] Amsterdam, 6 Rutgers Camden L J 1, 9; Note, 8 Sw U L Rev 687, 695.
[FN59] 16 Am. Jur. 2d, Constitutional Law § 541.
[FN61] Givelber, 1973 U Ill L F 88, 92, 109; Weissman, 69 Nw U L Rev 489, 510.
[FN63] State v Johnson, 74 Wis 2d 169, 246 NW2d 503.
The importance of proving selectivity is illustrated by the decision in Robinson

v Birmingham (Ala App) 353 So 2d 528, cert den (Ala) 353 So 2d 534, and cert den
436 US 932, 56 L Ed 2d 777, 98 S Ct 2833, where the court held that the
defendant, who was convicted of unlawfully exhibiting an obscene motion picture,
had failed to show any discrimination against him. The defendant elicited
testimony from the arresting officer that, during seven months on the Vice
Squad, the officer had arrested no other person for showing a full-length
obscene movie, and had arrested the defendant more than once; however, there was
no evidence that the officer had viewed any such movies at other movie houses,
no evidence that the defendant was the only person arrested by any police
Page 92 of 99
officer for such activity, and no evidence that the city had selected the
defendant's movie house as an exclusive target of prosecution.
[FN64] Comment, 1974 U Ill L F 648, 654; Comment, 65 J Crim L 62, 65; People v
Utica Daw's Drug Co., 16 App Div 2d 12, 225 NYS2d 128, 4 ALR3d 393.
[FN65] Comment, 1974 U Ill L F 648, 654; Comment, 65 J Crim L 62, 65; People v
Utica Daw's Drug Co., 16 App Div 2d 12, 225 NYS2d 128, 4 ALR3d 393.
4 A.L.R. 3d 404.
[FN66] Amsterdam, 6 Rutgers Camden L J 1, 3–4; Comment, 65 J Crim L 62, 65;
Tieger, 1971 Duke L J 717, 732–33; Weissman, 69 Nw U L Rev 489, 502–04.
[FN67] Givelber, 1973 U Ill L F 88, 92–93; Weissman, 69 Nw U L Rev 489, 510.
[FN68] Comment, 1974 U Ill L F 648, 654; Comment, 65 J Crim L 62, 65; Givelber,
1973 U Ill L F 88, 93–94.
[FN69] Comment, 1974 U Ill L F 648, 654–57; Gilvelber, 1973 U Ill L F 88, 94;
Weissman, 69 Nw U L Rev 489, 510–11.
[FN71] United States v Steele (CA9 Hawaii) 461 F2d 1148.
[FN72] Gilvelber, 1973 U Ill L F 88, 100; Tieger, 1971 Duke L J 717, 720–21.
[FN73] Amsterdam, 6 Rutgers Camden L J 1, 6–7; Comment, 1974 U Ill L F 648, 650;
[FN74] Gilvelber, 1973 U Ill L F 88, 93.
4 A.L.R. 3d 404.
[FN76] Gilvelber, 1973 U Ill L F 88, 94.
[FN77] Amsterdam, 6 Rutgers Camden L J 1, 4; Gilvelber, 1973 U Ill L F 88, 94.
Page 93 of 99
4 A.L.R. 3d 404.
[FN78] Amsterdam, 6 Rutgers Camden L J 1, 11–13; Comment, 1974 U Ill L F 648,

652.
[FN79] Gilvelber, 1973 U Ill L F 88, 94; Weissman, 69 Nw U L Rev 489, 506.
[FN80] Gilvelber, 1973 U Ill L F 88, 94; Weissman, 69 Nw U L Rev 489, 503, 505.
[FN81] Comment, 1974 U Ill L F 648, 651; Weissman, 69 Nw U L R 489, 510.
[FN82] Tieger, 1971 Duke L J 717, 729; Weissman, 69 Nw U L Rev 489, 506–07.
[FN83] Comment, 1974 U Ill L F 648, 654–55; Weissman, 69 Nw U L Rev 489, 510.
[FN84] Comment, 43 UMKC L Rev 413, 417–20.
[FN87] Amsterdam, 6 Rutgers Camden L J 1, 19; Weissman, 69 Nw U L Rev 489, 510.
[FN88] Comment, 65 J Crim L 62, 71; Tieger, 1971 Duke L J 717, 738–39.
[FN89] Amsterdam, 6 Rutgers Camden L J 1, 15–17; Tieger, 1971 Duke L J 717, 738–
39.
4 A.L.R. 3d 404.
[FN90] Comment, 1974 U Ill L F 648, 654; Comment, 65 J Crim L 62, 65; Tieger,
1971 Duke L J 717, 740.
[FN91] Tieger, 1971 Duke L J 717, 740–41.
[FN92] Comment, 65 J Crim L 62, 74; Tieger, 1971 Duke L J 717, 738–40, 743.
Page 94 of 99
654; Weissman, 69 Nw U L Rev 489, 512.
[FN94] Comment, 65 J Crim L 62, 70; Givelber, 1973 U Ill L F 88, 106–07;

Givelber, 1973 U Ill L F 88, 106–07.
[FN96] Comment, 1974 U Ill L F 648, 654–55; Comment, 65 J Crim L 62, 70–71.

United States v Steele (CA9 Hawaii) 461 F2d 1148.
[FN99] Givelber, 1973 U Ill L F 88, 106–09; United States v Crowthers (CA4 Va)
456 F2d 1074; State v Johnson, 74 Wis 2d 169, 246 NW2d 503.
[FN1] Givelber, 1973 U Ill L F 88, 106–111; Weissman, 69 Nw U L Rev 489, 511;
United States v Steele (CA9 Hawaii) 461 F2d 1148.
[FN2] Comment, 65 J Crim L 62, 70; Givelber, 1973 U Ill L F 88, 106, 112.

512; United States v Falk (CA7 Ill) 479 F2d 616; United States v Steele (CA9
Hawaii) 461 F2d 1148.

512; State v Johnson, 74 Wis 2d 169, 246 NW2d 503.
[FN7] Givelber, 1973 U Ill L F 88, 93–94; Note, 8 Sw U L Rev 687, 704; Weissman,
69 Nw U L Rev 489, 509.
[FN8] Comment, 65 J Crim L 62, 65; Givelber, 1973 U Ill L F 88, 93–94; Weissman,
69 Nw U L Rev 489, 506.
Page 95 of 99
[FN9] Givelber, 1973 U Ill L F 88, 94; Note, 8 Sw U L Rev 687, 704.
[FN10] Comment, 1974 U Ill L F 648, 654; Givelber, 1973 U Ill L F 88, 109; Note,
8 Sw U L Rev 687, 704.
[FN12] Comment, 65 J Crim L 62, 65; Givelber, 1973 U Ill L F 88, 106–09; Note, 8
Sw U L Rev 687, 704.
[FN13] Re, 53 Cal App 3d 725, 126 Cal Rptr 118.
[FN15] Comment, 1974 U Ill L F 648, 654; Note, 8 Sw U L Rev 687, 704; United
States v Steele (CA9 Hawaii) 461 F2d 1148.
393.
124 Cal Rptr 204, 540 P2d 44.
[FN18] United States v Crowthers (CA4 VA) 456 F2d 1074; People v Amdur, 123 Cal
App 2d Supp 951, 267 P2d 445.

657–59.
[FN22] United States v Falk (CA7 Ill) 479 F2d 616.

658; Note, 8 Sw U L Rev 687, 704.
[FN24] United States v Falk (CA7 Ill) 479 F2d 616; United States v Steele (CA9
Hawaii) 461 F2d 1148.
Page 96 of 99
[FN25] Comment, 1974 U Ill L F 648, 658–59; United States v Falk (CA7 Ill) 479
F2d 616.
[FN26] Amsterdam, 6 Rutgers Camden L J 1, 19; Comment, 1974 U Ill L F 648, 650.
[FN27] Comment, 1974 U Ill L F 648, 650, 660.
[FN28] Comment, 1974 U Ill L F 648, 661.
124 Cal Rptr 204, 540 P2d 44.
[FN30] Bortin v Superior Court of San Francisco, 64 Cal App 3d 873, 135 Cal Rptr
30.
[FN32] United States v Berrios (CA2 NY) 501 F2d 1207.
[FN34] Amsterdam, 6 Rutgers Camden L J 1, 21; Givelber, 1973 U Ill L F 88, 112–
13; Weissman, 69 Nw U L Rev 489, 512.
[FN36] Comment, 65 J Crim L 62, 70; Givelber, 1973 U Ill L F 88, 113–14;

512.
[FN40] Givelber, 1973 U Ill L F 88, 94.
Page 97 of 99
[FN41] Comment, 65 J Crim L 62, 64; Tieger, 1971 Duke L J 717, 738–39, 743.

650.
[FN43] Amsterdam, 6 Rutgers Camden L J 1, 15–17; Givelber, 1973 U Ill L F 88,

102–04, 114–15; Tieger, 1971 Duke L J 717, 720–21.
[FN44] Givelber, 1973 U Ill L F 88, 96–97, 117–18; Russo, 3 Loyola U L Rev 65,
70–71.
[FN45] Amsterdam, 6 Rutgers Camden L J 1, 15–17; Tieger, 1971 Duke L J 717, 735.
[FN46] Givelber, 1973 U Ill L F 88, 112–17; Tieger, 1971 Duke L J 717, 732, 735,
743.
[FN47] Givelber, 1973 U Ill L F 88, 101, 106–08.
[FN48] Tieger, 1971 Duke L J 717, 732, 743.
[FN49] Givelber, 1973 U Ill L F 88, 108, 113–15.
[FN50] Tieger, 1971 Duke L J 717, 739–40.
[FN51] Russo, 3 Loyola U L Rev 65, 70–71, 83.
[FN52] Comment, 1974 U Ill L F 648, 650, 663.

See also, § 12, supra.
[FN53] Amsterdam, 6 Rutgers Camden L J 1, 13; Tieger, 1971 Duke L J 717, 735.
124 Cal Rptr 204, 540 P2d 44.
Page 98 of 99
393.
[FN59] Comment, 1974 U Ill L F 648, 658, 660; Givelber, 1973 U Ill L F 88, 93–
94.
© 2006 Thomson/West
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13 Am. Jur.

Proof of Facts 2d 609

American Jurisprudence Proof of Facts 2d

Categorical List of Articles

Discriminatory Enforcement of Criminal Law

Jimmie E. Tinsley, J.D.

Admission of improper prosecutorial motive—,

Whether a penal law is being selectively enforced against particular individuals

Discriminatory enforcement of a penal law has long been recognized as a

Claims of discriminatory enforcement of criminal laws have usually been based on

To establish a denial of the constitutional requirement of equality, there must

A claim of discriminatory enforcement may be based not only on discriminatory

Although the defense of discriminatory enforcement is gaining increased

Immigration proceedings: Exclusive jurisdiction provision of Illegal Immigration

Prosecutorial discretion is not unfettered, and selectivity in the enforcement

Although a prosecutor obviously cannot base charging decisions on a defendant's

Although referred to for convenience as a "defense," a claim of discriminatory

§ 1.5. Vindictive enforcement

In order to prevail on claim of vindictive prosecution, where no presumption of

Shifting burden of proof: When circumstances pose a likelihood of vindictiveness

By recognizing possibility of creating a presumption of vindictive prosecution

Because of general presumption of prosecutorial regularity, a presumption of

Even if presumption of vindictiveness at resentencing, in prosecution on charges

"Vindictive enforcement" is selective enforcement intended to discourage or

To prevail on Fourteenth Amendment equal protection claim alleging punishment

Defendant established defense of vindictive prosecution; "but for" defendant's

Defendant bears the burden of production and persuasion in seeking to prove a

Presumption of prosecutorial retaliation or vindictiveness is appropriate only

Presumption of vindictiveness: State failed to overcome presumption of

Selective vs vindictive enforcement: Example of a "true selective enforcement"

In order to show a presumption of prosecutorial vindictiveness following a

The prosecutor's decision to file an additional felony child neglect charge

"Prosecutorial vindictiveness" is a term of art which refers to a situation in

§ 2. Availability of defense; common situations in which defense is raised

Even in jurisdictions where discriminatory enforcement is available as a defense

Many cases have involved claims that prosecutorial authorities intentionally

In recent years the defense of discriminatory enforcement has been raised in a

§ 2.3. Discrimination in tender of plea bargain

Defendants who alleged that government committed equal protection violations by

Not only is a presumption of prosecutorial vindictiveness inapplicable to the

Presumptive vindictiveness: Term "vindictive," in context of presumption of

The defendant's decision to go to trial rather than to accept a plea bargain

Defendant's constitutional right to equal protection was not denied by district

Prosecutor's actions in dismissing original charge of felony assault with a

§ 2.5. Discrimination in selection of participants for pre-trial diversion

Prosecutor's decision not to admit stolen-property defendant to diversion

§ 2.7. Death penalty discrimination claims

§ 3. Persons or officials responsible for discriminatory enforcement

Although criminal laws may be discriminatorily enforced by any person connected

The United States Attorney is the representative not of an ordinary party to a

§ 4. Remedies and relief available

There is considerable disagreement concerning the appropriate procedure for

A claim of discriminatory enforcement is usually raised either in connection

There appears to be even more of a divergence of opinion with respect to the

A defendant who prevails on a claim of discriminatory enforcement is not

First Amendment retaliation action based upon claim of selective prosecution

Selective prosecution claim is not a defense on the merits to a criminal charge

Plaintiff's claim that he would be subject to selective enforcement of Kansas

County attorney's conduct in refiling charges that were dismissed in preliminary

Claim of selective enforcement is not an affirmative defense to charge of

§ 4.3. Remedies--Under Hyde Amendment

Government's position in an unsuccessful criminal prosecution is "vexatious," as

Hyde Amendment, which authorizes reasonable attorney fees and litigation