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Suppose someone does something you don't like but isn't illegal. Can you (a prosecutor) prosecute them for something illegal with probable cause not because of their illegal action but because of the legal action you didn't like? Does this fall under abuse of process? Is it against the due process doctrine as the defendant isn't actually being punished for what they're being punished for on paper? Is it at least against a prosecutorial code of conduct? If so, how seriously are such codes of conduct taken?

Example: Suppose someone cheated on their wife, can they be prosecuted for the possession of marijuana if the reason that the prosecutor is prosecuting them is the cheating?

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    Can you clarify this a bit, please? – Putvi Jun 10 at 20:16
  • @Putvi How so? It seems straightforward to me. – ThisIsMyDisplayName Jun 10 at 20:16
  • Just as in what you would consider prosecuting them for ulterior motives. "Can you prosecute them for something illegal with probable cause not because of their illegal action but because of the legal action you didn't like?" That and the first sentence didn't make a lot of sense, not that I am knocking you, just it would have to be clarified to answer well. – Putvi Jun 10 at 20:18
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    The cheating doesn't really have anything to do with it either way. The prosecutor just fills out paperwork saying this person had drugs in this county at this specific time then the judge would say ok this is filed correctly and the prosecutor would have to make his case. – Putvi Jun 10 at 20:22
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    Regard for the prosecutor's intentions or motivations by whom? The judge doesn't know the motivations, can't prove them, doesn't care, and won't consider them. Maybe a reporter would make an issue of the prosecutor's intentions in the press, but that won't change the outcome of the case. – abelenky Jun 10 at 20:25
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Here's some of the law in the area of prosecutorial discretion:

In the ordinary case, “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 or bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668, 54 L.Ed.2d 604 (1978).

Of course, a prosecutor's discretion is “subject to constitutional constraints.” United States v. Batchelder, 442 U.S. 114, 125, 99 S. Ct. 2198, 2204–2205, 60 L.Ed.2d 755 (1979). One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, Bolling v. Sharpe, 347 U.S. 497, 500, 74 S. Ct. 693, 694–695, 98 L.Ed. 884 (1954), is that the decision whether to prosecute may not be based on “an unjustifiable standard such as race, religion, or other arbitrary classification,” Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 506, 7 L.Ed.2d 446 (1962). A defendant may demonstrate that the administration of a criminal law is “directed so exclusively against a particular class of persons ... with a mind so unequal and oppressive” that the system of prosecution amounts to “a practical denial” of equal protection of the law. Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S. Ct. 1064, 1073, 30 L.Ed. 220 (1886).

In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present “clear evidence to the contrary.” Chemical Foundation, supra, at 14–15, 47 S. Ct., at 6. We explained in Wayte why courts are “properly hesitant to examine the decision whether to prosecute.” 470 U.S., at 608, 105 S. Ct., at 1531. Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. “Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.” Id., at 607, 105 S. Ct., at 1530. It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. “Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy.” Ibid.

United States v. Armstrong, 517 U.S. 456, 464–65 (1996).

  • Can you apply this idea to my example? Is prosecution based on someone doing something legal but otherwise reprehensible justifiable? – ThisIsMyDisplayName Jun 10 at 20:44
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    Well I can't tell you what's justifiable from some sort of moral sense. But from a legal, constitutional perspective, prosecutors can bring whatever charges they want, as long as they're supported by probable cause, and as long as the prosecution is not motivated by race, religion, or other arbitrary classification. – Bill Jun 10 at 20:46
  • Is being a cheater an arbitrary classification do you think? – ThisIsMyDisplayName Jun 10 at 20:47
  • Well I never provide answers without finding authority, but I don't think that's the type of classification they're contemplating. It's more about race, gender, religion, etc. – Bill Jun 10 at 20:48
  • What about not laws but codes of conduct? – ThisIsMyDisplayName Jun 10 at 20:51
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If they did something illegal, a prosecutor acting for the state (not just any regular person), can prosecute them.

The Prosecutor's motive or reason for choosing to pursue the case or not, to be aggressive or lenient, should not be taken into account by a Judge.

In your example:
If you don't want to get prosecuted for marijuana, don't use/possess marijuana! It doesn't matter if you slept with the prosecutor's wife: You still had an illegal substance.


You wrote:

Can you prosecute them for something illegal with probable cause not because of their illegal action but because of the legal action you didn't like?

No: You cannot prosecute someone (unless you happen to be a prosecutor, and are working in your official capacity). You can ask the police to investigate (and they will prioritize appropriately). You can cooperate with the prosecutor if you are materially involved. But the prosecution is up to the state, not to you.

  • But what if it can be shown that the prosecutor exercised discretion in other cases? – ThisIsMyDisplayName Jun 10 at 20:24
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    It wouldn't come up. Courts are pretty full and the judge is going to tell them to move along if they talk about anything other than the case. – Putvi Jun 10 at 20:26
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    The state is always free to exercise discretion in allocating limited resources against the larger needs of society. – abelenky Jun 10 at 20:26
  • The town I live in has under 10 thousand, so we are pretty small, and it still takes about a month to get into court, just as an example. – Putvi Jun 10 at 20:28
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    @ThisIsMyDisplayName Except they can and do do that all the time, and this is rather expected of them. First time offenders, those who "show remorse", those less likely to be repeat offenders, etc. all tend to get more lenient sentences or plea offers, because the justice system (usually) isn't meant to impose the same punishment on all offenders, but to operate within a range that can account for variables the laws do not (and in some sense, cannot). That said, a prosecutor is highly likely to recuse themselves from anything that directly involves them. – zibadawa timmy Jun 11 at 11:50
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So in this case, the Prosecutor is right to file charges against the offender for the crime, however, if the Prosecutor is aware of the defendant having slept with his wife prior the trial and does not recuse himself, it could affect the outcome of any appellant court case and the trial decision maybe vacated Or a mistrial declared.

Recuseal does not mean the defendant does not get prosecuted, only that the prosecutor's office (including those career lawyers who work in the office) are not going to handle the case and instead turn it over to another prosecutor's office to argue the case.

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