In the American criminal justice system, prosecutors have an enormous amount of discretion and power. With dockets growing more cramped, prosecutors often use threats of harsher charges and sentences to deter defendants from exercising their right to a jury trial or an appeal. Prosecutors can also wield this power for purely vindictive or retaliatory purposes, as one prosecutor noted when reflecting on his career: Sometimes a public defender or a defense lawyer will just try and bust your ass all the time. Frankly, you end up busting theirs back. You get irritated, but you try not to take it out on the people they represent… Should you penalize him for that? No. Do we? Probably, sometimes. You try not to, but we're human. When prosecutors sidestep their ethical obligations in this way, defendants have one possible remedy: striking the enhanced charges by proving prosecutorial vindictiveness. The Supreme Court of the United States has created two tests for a defendant to prove prosecutorial vindictiveness when a prosecutor increases or enhances charges: the presumption of prosecutorial vindictiveness test and the objective evidence test. Missouri courts have adopted both of these tests and applied them to various situations beyond merely an enhancement in charges.
Creating an Impossible Burden: State ex rel. Becker v. Wood and Prosecutorial Vindictiveness,
87 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol87/iss1/11