Such a claim might, for example, entail an argument that persons of different age, race, religion, sex, gender, or political alignment, were engaged in the same illegal acts for which the defendant is being tried yet were not prosecuted, and that the defendant is being prosecuted specifically because of a bias as to that class.
The U.S. Supreme Court has defined the term as: "A selective prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.
"[1] The defense is rarely successful; some authorities claim, for example, that there are no reported cases in at least the past century in which a court dismissed a criminal prosecution because the defendant had been targeted based on race.
[2] In United States v. Armstrong (1996), the Supreme Court ruled the Attorney General and United States Attorneys "retain 'broad discretion' to enforce the Nation's criminal laws"[3] and that "in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.
'"[5] Selective prosecution has been raised as a possible defense in the election obstruction case of Donald Trump,[6] and as a possible motivation for tax and firearms charges against Hunter Biden.