Are You the Victim of Vindictive Prosecution?

June 10, 2021 Criminal Defense

What is Vindictive Prosecution?

The Supreme Court established that vindictive prosecution is impermissible and occurs when the prosecutor retaliates against the defendant because the defendant has chosen to exercise a legal right.[1] This results in a denial of due process, a defendant’s constitutional right to fair proceedings in a court of law. It is difficult to draw a hard and fast line to mark where vindictive prosecution begins, and zealous representation ends because the Supreme Court does allow for a prosecutor to be open in their presentation of the “unpleasant alternatives of forgoing trial or facing charges on which [the defendant] was plainly subject to.”[2] Therefore, there is not vindictive prosecution where the defendant is free to accept or reject the prosecutor’s offer.[3]

The Supreme Court has established two standards to measure whether impermissible prosecutorial vindictiveness has occurred: the Goodwin test and the Blackledge test. The Goodwin test comes from Supreme Court Decision United States v. Goodwin and states that a defendant must prove by objective evidence that the prosecutor in their case acted with actual vindictiveness to punish them for exercising their constitutional rights.[4] In order to do this, the defendant has to present objective and real evidence that the prosecutor acted with the specific intention of punishing the defendant for exercising their legal rights.[5] The second test comes from Supreme Court decision Blackledge v. Perry, and requires that the defendant present proof which “establishes a presumption that there is a realistic likelihood of vindictiveness as applied to the particular factual situation presented.”[6] If a defendant can establish this, then the burden shifts to the prosecutor to prove that their prosecutorial action was justified and rebut the presumption created by the defendant.[7] Under the Blackledge test, the prosecutor’s actual intentions are not at issue – rather the measure is the outward appearance of their actions.[8] Still, the defendant must satisfy two prongs to prove prosecutorial vindictiveness under Blackledge: First, the defendant must establish that the prosecutor had or has a reason for attempting to deter the defendant’s use of their legal and constitutional rights.[9] Second, the defendant must establish that the prosecutor’s conduct was “unreasonable.”[10]

Blackledge provides the easier test for defendants to prove prosecutorial vindictiveness because the Supreme Court held there that, even where no actual vindictiveness is found (as is required under the Goodwin test), “due process requires that defendants be free from the potential retaliation of a prosecutor.”[11]

How Can We Help?

A prepared and vigilant attorney can pick up on the signs of prosecutorial vindictiveness and ensure that it does not play a role in the case of you or a loved one. To combat such impermissible conduct, a Tallahassee criminal defense attorney can file a Motion to Dismiss for Vindictive Prosecution. If you or a loved one has been charged with a crime or have questions as to whether prosecutorial vindictiveness has played a role in your case, contact a criminal defense lawyer as soon as possible to discuss your options. Don Pumphrey and the members of the legal team at Pumphrey Law Firm know the signs of prosecutorial vindictiveness and how to ensure that you or a loved one’s case is handled fairly and impartially. Call a defense attorney today at (850) 681-7777 or send an online message to discuss your options during an open and free consultation with an attorney in our legal team.

This article was written by Gabrielle D’Esposito

gabi d'esposito pumphrey law









[1] Blackledge v. Perry, 417 U.S. 21, 27-29 (1974).

[2] Bordenkircher v. Hayes, 434 U.S. 437, 265 (1978).

[3] Id.

[4]  United States v. Goodwin, 457 U.S. 368 (1982).

[5] Id.

[6] Blackledge, 417 U.S. at 27.

[7] Id.

[8] Id. at 28.

[9] U.S. v. Anderson, 923 F.2d 450, 453 (6th Cir. 1991)

[10] Id.

[11] Blackledge, 417 U.S. at 21.

Back to Top