Prosecutorial vindictiveness occurs where a prosecutor retaliates against a defendant for exercising a constitutional or statutory right by increasing the number or severity of the charges against him.
[1][2] The United States Supreme Court has held prosecutorial vindictiveness to constitute a violation of a defendant's right to due process.
[5] In Blackledge v. Perry, decided in 1974, the court extended the holding of Pearce to include actions taken by prosecutors in response to a defendant's exercise of a constitutional or statutory right.
[6] In finding a due process violation, the court evinced a concern that fear of prosecutorial vindictiveness would have a chilling effect on a defendant's willingness to exercise his rights.
[8] For example, in United States v. DeMarco, the court found actual vindictiveness where the government threatened to "up the ante" to discourage a defendant from exercising his right to change the trial venue.
[10] In contrast, the Supreme Court has held that a presumption of vindictiveness does not apply in the plea-bargaining context where the prosecutor carries out a threat to bring additional charges against a defendant who refuses to plead guilty.
[5] The Court found an "inflexible presumption of prosecutorial vindictiveness" to be inappropriate in the pretrial setting, where a prosecutor's case against a defendant may not yet have "crystallized.
[2] The Sixth Circuit employs a test requiring the court to assess whether "a reasonable person would think there existed a realistic likelihood of vindictiveness" based on the particular facts of the case.