The defense of selective prosecution is based on a claim that a defendant has been singled out for prosecution of a particular crime while others similarly situated are not being prosecuted. This defense is based on the theory that selective prosecution denies equal protection of the law.97 To establish selective prosecution, the defendant must first demonstrate that the State had knowledge that others have engaged in substantially the same conduct to the same degree as the defendant yet has conscientiously chosen not to prosecute those other individua1s.98 A showing of as few as two or three other prosecutions for similar conduct may overcome this first element.99
If the first element is adequately shown, the defendant must next demonstrate that the government’s selection of the defendant for prosecution was invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion or the desire to prevent the defendant from exercising his or her constitutional rights.100 A discriminatory purpose may not be inferred from discriminatory consequences alone. Instead, a defendant must show that the decision to prosecute was made because of, and not merely in spite of, its adverse effect on an identifiable group.101
The fact that the defendant has political prominence or is generally newsworthy is not an impermissible basis for selection. If, however, it is shown that the prominent or newsworthy individual is being singled out because that person advocates a particular cause, the second prong will be satisfied.102
97. Albury v. State, 551 A.2d 53, 61 n.13 (Del. 1988); Ward v. State, 414 A.2d 499 (Del. 1980).
98. State v. Holloway, 460 A.2d 976, 978 (Del. Super. 1983); State v. Wharton, Cr. A. Nos. 1N90-12.1228-1236, slip op. at 10, Barron, J. (Del. Super. June 3, 1991); State v. Hovey, Cr. A. Nos. N88-01-0125-0133, slip op. at 6, Bifferato, J. (Del. Super. May 20, 1988).
99. State v. Holloway, 460 A.2d 976, 979 (Del. Super. 1983).
100. State v. Holloway, 460 A.2d 976, 978 (Del. Super. 1983); State v. Wharton, Cr. A. Nos. 1N90-12-1228-1236, slip op. at 10, Barron, J. (Del. Super. June 3, 1991); State v Hovey, Cr. A. Nos. N88-01-0125-0133, slip op. at 6, Bifferato, J. (Del. Super. May 20, 1988).
101. State v. Wharton, Cr. A. Nos. 1N90-12-1228-1236, slip op. at 19-20, Barron, J. (Del. Super. June 3, 1991).
102. State v. Holloway, 460 A.2d 976, 980 (Del. Super. 1983).
© 2010 David L. Finger