Law Commons^™

Prosecutorial Vindictiveness: An Examination Of Divergent Lower Court Standards And A Proposed Framework For Analysis, John J. Cross, Iii

Vanderbilt Law Review

The judicial response to the problems posed by the conduct of a prosecutor who brings increased charges against a criminal defendant for exercising his legal rights has not been adequate.Lower federal courts have adopted divergent standards, focusing on whether there exists an appearance of prosecutorial vindictiveness, a realistic likelihood of prosecutorial vindictiveness, or actual prosecutorial vindictiveness. By couching their analyses in terms of the prosecutor's motivations, these courts have ignored the overriding principle of substantive due process, which holds that fundamental constitutional rights should be afforded greater due process protection than nonfundamental rights. This Recent Development submits that courts must …