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

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§ 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—,

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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—, arbitrary or invidious discrimination, as constituting,, §§ 2, 8 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 element of claim,, §§ 1, 5, 7 evidence of,, §§ 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 criticisms of,, § 14 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

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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 testimony concerning,, § 18 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 testimony concerning,, § 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

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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 testimony concerning,, § 24 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 criticisms of,, § 14 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—, arbitrary or invidious discrimination, as constituting,, §§ 2, 8 rebuttal of evidence showing,, §§ 10, 13 Rebuttal,, §§ 10, 13 Regulations, discriminatory enforcement of,, § 1 Religious discrimination—, arbitrary or invidious discrimination, as constituting,, §§ 2, 8 rebuttal of evidence showing,, §§ 10, 13 Remedies and relief available,, § 4 Selective enforcement—, generally,, § 6 element of claim,, §§ 1, 5, 6 evidence of,, §§ 6, 11 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

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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—, evidence of,, §§ 11, 15 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

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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).

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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. AmericanArab 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.

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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 [Cumulative Supplement]

CUMULATIVE SUPPLEMENT 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).

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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 Key Number Digest, Criminal Law 37.15(1). 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),

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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).

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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 tenfold, 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 [Cumulative Supplement]

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

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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] CUMULATIVE SUPPLEMENT 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

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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. [Top of Section] [END OF SUPPLEMENT] § 2.3. Discrimination in tender of plea bargain [Cumulative Supplement]

CUMULATIVE SUPPLEMENT 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.

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Sarracino, 340 F.3d 1148, 62 Fed. R. Evid. Serv. 992 (10th Cir. 2003); West's Key Number Digest, Criminal Law 37.15(1). 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 pleabargaining 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]

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[END OF SUPPLEMENT] § 2.5. Discrimination in selection of participants for pre-trial diversion program [Cumulative Supplement]

CUMULATIVE SUPPLEMENT 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 [Cumulative Supplement]

CUMULATIVE SUPPLEMENT 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;

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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 [Cumulative Supplement]

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]

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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] CUMULATIVE SUPPLEMENT 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 [Cumulative Supplement]

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]

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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] CUMULATIVE SUPPLEMENT 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

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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, Criminal Law 37.10(1). 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.

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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 Digest, Criminal Law 37.10(1). [Top of Section] [END OF SUPPLEMENT] § 4.3. Remedies--Under Hyde Amendment [Cumulative Supplement]

CUMULATIVE SUPPLEMENT 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

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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 [Cumulative Supplement]

CUMULATIVE SUPPLEMENT 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).

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[Top of Section] [END OF SUPPLEMENT] § 5. Elements of discriminatory enforcement--In general [Cumulative Supplement]

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] CUMULATIVE SUPPLEMENT 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.

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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

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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 [Cumulative Supplement]

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

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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] CUMULATIVE SUPPLEMENT 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 [Cumulative Supplement]

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

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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 informationgathering 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] CUMULATIVE SUPPLEMENT 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

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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). [Top of Section] [END OF SUPPLEMENT] § 8. Elements of discriminatory enforcement--Requirement of arbitrary or invidious standard of enforcement [Cumulative Supplement]

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]

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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] CUMULATIVE SUPPLEMENT 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

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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.

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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 [Cumulative Supplement]

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] CUMULATIVE SUPPLEMENT 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

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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, Criminal Law 37.15(2). 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.

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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, Criminal Law 37.15(2). [Top of Section] [END OF SUPPLEMENT] § 10. Burden and quantum of proof--The prima facie case

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[Cumulative Supplement]

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]

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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] CUMULATIVE SUPPLEMENT 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 Spanishspeaking 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).

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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, Criminal Law 37.10(1). 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, Criminal Law 37.10(1). 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

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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, Criminal Law 37.10(2). [Top of Section] [END OF SUPPLEMENT] § 11. Evidence [Cumulative Supplement]

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]

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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

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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] CUMULATIVE SUPPLEMENT 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.

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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.

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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

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for disorderly conduct. Carreras v State (1996, Tex App Houston (14th Dist)) 936 SW2d 727. [Top of Section] [END OF SUPPLEMENT] § 12. Evidence--Discovery [Cumulative Supplement]

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]

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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] CUMULATIVE SUPPLEMENT 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

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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 Digest, Criminal Law 37.10(1). [Top of Section] [END OF SUPPLEMENT] § 13. Evidence--Rebuttal [Cumulative Supplement]

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

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be justified by evidence showing that the selectivity was part of an attempt to control organized commercial prostitution.[FN39] CUMULATIVE SUPPLEMENT 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). [Top of Section] [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]

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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

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[Cumulative Supplement]

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

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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. CUMULATIVE SUPPLEMENT 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, Criminal Law 37.10(1). 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, Criminal Law 273.4(1). 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

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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.

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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.

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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.

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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 [After introduction and identification of witness] Q. What is your present occupation? 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.

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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?

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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.

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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?

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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.

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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?

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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. Q. Prior to , 20 [date of alleged violation], were you aware that [defendant] 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. Q. Prior to , 20 [date of alleged violation], were you aware that [defendant] had made public statements urging the criminal prosecution of, and the recall from office of, [city councilman]?

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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 [After introduction and identification of witness] 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.

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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?

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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 [Cumulative Supplement]

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.

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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. CUMULATIVE SUPPLEMENT 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

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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.

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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.

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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

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§ 26. Enforcement policies and procedures directed at women [After introduction and identification of witness] Q. What is your present occupation? 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?

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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?

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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.

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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?

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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.

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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 prostitutionrelated 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.

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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.

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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

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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 prostitutionrelated 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?

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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 [After introduction and identification of witness] Q. What is your occupation? 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.

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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.

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§ 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.]

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[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.

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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 [After introduction and identification of witness] Q. Where do you presently live? A. At [address]. Q. What is your occupation? 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.

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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.

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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

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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.]

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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

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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

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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 disproportionateenforcement 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)

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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)

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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.

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[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. [FN12] Weissman, 69 Nw U L Rev 489, 502. [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.

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Section 2 Footnotes: [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. [FN20] Amsterdam, 6 Rutgers Camden L J 1, 4. [FN21] Murguia v Municipal Court for Bakersfield Judicial Dist., 15 Cal 3d 286, 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. [FN28] Murguia v Municipal Court for Bakersfield Judicial Dist., 15 Cal 3d 286, 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.

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Section 3 Footnotes: [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. [FN35] Weissman, 69 Nw U L Rev 489, 494. [FN36] Yick Wo v Hopkins, 118 US 356; People v Amdur, 123 Cal App 2d Supp 951, 267 P2d 445. [FN37] Murguia v Municipal Court for Bakersfield Judicial Dist., 15 Cal 3d 286, 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. Section 4 Footnotes: [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.

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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. Section 5 Footnotes: [FN53] 4 A.L.R. 3d 404.

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[FN54] Givelber, 1973 U Ill L F 88, 92–93. 4 A.L.R. 3d 404. [FN55] Weissman, 69 Nw U L Rev 489, 502–03. 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. [FN57] Murguia v Municipal Court for Bakersfield Judicial Dist., 15 Cal 3d 286, 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. [FN60] Amsterdam, 6 Rutgers Camden L J 1, 4. Section 6 Footnotes: [FN61] Givelber, 1973 U Ill L F 88, 92, 109; Weissman, 69 Nw U L Rev 489, 510. [FN62] Re G., 53 Cal App 3d 725, 126 Cal Rptr 118. [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

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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. Section 7 Footnotes: [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. [FN70] Weissman, 69 Nw U L Rev 489, 503–05. [FN71] United States v Steele (CA9 Hawaii) 461 F2d 1148. Section 8 Footnotes: [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; Weissman, 69 Nw U L Rev 489, 503. [FN74] Gilvelber, 1973 U Ill L F 88, 93. 4 A.L.R. 3d 404. [FN75] Weissman, 69 Nw U L Rev 489, 510. [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.

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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. [FN85] Re G., 53 Cal App 3d 725, 126 Cal Rptr 118. [FN86] State v Johnson, 74 Wis 2d 169, 246 NW2d 503. Section 9 Footnotes: [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. Section 10 Footnotes: [FN92] Comment, 65 J Crim L 62, 74; Tieger, 1971 Duke L J 717, 738–40, 743.

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[FN93] Amsterdam, 6 Rutgers Camden L J 1, 20–22; Comment, 1974 U Ill L F 648, 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; Weissman, 69 Nw U L Rev 489, 512. [FN95] Amsterdam, 6 Rutgers Camden L J 1, 10–13; Comment, 65 J Crim L 62, 70; 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. [FN97] Amsterdam, 6 Rutgers Camden L J 1, 10–13; Comment, 65 J Crim L 62, 70; United States v Steele (CA9 Hawaii) 461 F2d 1148. [FN98] Comment, 65 J Crim L 62, 70. [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. [FN3] Amsterdam, 6 Rutgers Camden L J 1, 21–22; Weissman, 69 Nw U L Rev 489, 512; United States v Falk (CA7 Ill) 479 F2d 616; United States v Steele (CA9 Hawaii) 461 F2d 1148. [FN4] Amsterdam, 6 Rutgers Camden L J 1, 21–22; Weissman, 69 Nw U L Rev 489, 512; State v Johnson, 74 Wis 2d 169, 246 NW2d 503. [FN5] Comment, 65 J Crim L 62, 71. [FN6] Amsterdam, 6 Rutgers Camden L J 1, 22. Section 11 Footnotes: [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.

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[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. [FN11] United States v Steele (CA9 Hawaii) 461 F2d 1148. [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. [FN14] People v Acme Markets, Inc., 37 NY2d 326, 372 NYS2d 590, 334 NE2d 555. [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. [FN16] People v Utica Daw's Drug Co., 16 App Div 2d 12, 225 NYS2d 128, 4 ALR3d 393. [FN17] Murguia v Municipal Court for Bakersfield Judicial Dist., 15 Cal 3d 286, 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. [FN19] Comment, 1974 U Ill L F 648, 657–59. [FN20] Amsterdam, 6 Rutgers Camden L J 1, 19–20; Comment, 1974 U Ill L F 648, 657–59. [FN21] People v Acme Markets, Inc., 37 NY2d 326, 372 NYS2d 590, 334 NE2d 555. [FN22] United States v Falk (CA7 Ill) 479 F2d 616. [FN23] Amsterdam, 6 Rutgers Camden L J 1, 11–12; Comment, 1974 U Ill L F 648, 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.

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[FN25] Comment, 1974 U Ill L F 648, 658–59; United States v Falk (CA7 Ill) 479 F2d 616. Section 12 Footnotes: [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. [FN29] Murguia v Municipal Court for Bakersfield Judicial Dist., 15 Cal 3d 286, 124 Cal Rptr 204, 540 P2d 44. [FN30] Bortin v Superior Court of San Francisco, 64 Cal App 3d 873, 135 Cal Rptr 30. [FN31] Comment, 1974 U Ill L F 648, 661–62. [FN32] United States v Berrios (CA2 NY) 501 F2d 1207. [FN33] United States v Steele (CA9 Hawaii) 461 F2d 1148. Section 13 Footnotes: [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. [FN35] Amsterdam, 6 Rutgers Camden L J 1, 21. [FN36] Comment, 65 J Crim L 62, 70; Givelber, 1973 U Ill L F 88, 113–14; Weissman, 69 Nw U L Rev 489, 511. [FN37] Amsterdam, 6 Rutgers Camden L J 1, 21–22; Weissman, 69 Nw U L Rev 489, 512. [FN38] United States v Steele (CA9 Hawaii) 461 F2d 1148. [FN39] State v Johnson, 74 Wis 2d 169, 246 NW2d 503. Section 14 Footnotes: [FN40] Givelber, 1973 U Ill L F 88, 94.

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[FN41] Comment, 65 J Crim L 62, 64; Tieger, 1971 Duke L J 717, 738–39, 743. [FN42] Amsterdam, 6 Rutgers Camden L J 1, 15–17; Comment, 1974 U Ill L F 648, 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. Section 15 Footnotes: [FN53] Amsterdam, 6 Rutgers Camden L J 1, 13; Tieger, 1971 Duke L J 717, 735. [FN54] Amsterdam, 6 Rutgers Camden L J 1, 13. [FN55] People v Acme Markets, Inc., 37 NY2d 326, 372 NYS2d 590, 334 NE2d 555. [FN56] Murguia v Municipal Court for Bakersfield Judicial Dist., 15 Cal 3d 286, 124 Cal Rptr 204, 540 P2d 44.

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[FN57] People v Utica Daw's Drug Co., 16 App Div 2d 12, 225 NYS2d 128, 4 ALR3d 393. [FN58] United States v Steele (CA9 Hawaii) 461 F2d 1148. [FN59] Comment, 1974 U Ill L F 648, 658, 660; Givelber, 1973 U Ill L F 88, 93– 94. [FN60] Comment, 65 J Crim L 62, 72. © 2006 Thomson/West 13 AMJUR POF 2d 609 END OF DOCUMENT

© 2006 Thomson/West

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