NCJ Number
59896
Journal
Washington and Lee Law Review Volume: 36 Issue: 2 Dated: (SPRING 1979) Pages: 347-377
Date Published
1979
Length
31 pages
Annotation
THE U.S. SUPREME COURT ESTABLISHED THAT THE IMPOSITION OF ADDITIONAL CHARGES AGAINST A CRIMINAL DEFENDANT UPON RETRIAL MAY VIOLATE THE PRINCIPLES OF DUE PROCESS IF THE CHARGES ARE RETALIATION FOR THE ASSERTION OF RIGHTS.
Abstract
A CRIMINAL DEFENDANT IS ENTITLED TO PURSUE HIS CONSTITUTIONAL AND STATUTORY RIGHTS FREE OF PROSECUTORIAL THREATS AND INTIMIDATION. FEAR OF PROSECUTORIAL RETALIATION MAY CHILL A DEFENDANT'S EXERCISE OF THESE RIGHTS. THEREFORE, THE GOVERNMENT MAY NOT PERMISSIBLY CHARGE A PREVIOUSLY INDICTED DEFENDANT WITH ADDITIONAL CRIMES OR MORE SERIOUS OFFENSES MERELY BECAUSE THE DEFENDANT TAKES ADVANTAGE OF THE RIGHT TO A JURY TRIAL. THE U.S. SUPREME COURT IN NORTH CAROLINA V. PEARCE (1969) AND IN BLACKLEDGE V. PERRY (1974) ESTABLISHED THAT THE VERY APPEARANCE OF PROSECUTORIAL VINDICTIVENESS, NOT SIMPLY EXPRESS RETALIATION, IS PROSCRIBED BY THE 14TH AMENDMENT'S DUE PROCESS CLAUSE. ONLY DURING THE PROCESS OF PLEA NEGOTIATIONS MAY A PROSECUTOR THREATEN A DEFENDANT WITH MORE SERIOUS CHARGES, AND EVEN THEN ONLY WHEN THE PROSECUTOR HAS PROBABLE CAUSE TO FILE THE MORE SERIOUS CHARGE. ANY ATTEMPT BY THE GOVERNMENT TO INVOKE THE NARROW EXCEPTION DURING GOOD FAITH PLEA BARGAINING MUST BE SCRUTINIZED BY THE COURTS. AN EXAMINATION OF THE DEVELOPMENT OF THE RIGHT TO BE FREE FROM VINDICTIVENESS INDICATES THAT VINDICTIVENESS WILL BE PRESUMED ABSENT, AN ADEQUATE JUSTIFICATION FOR ADDITIONAL CHARGES. MOST LOWER COURTS APPLIED THE PLEA BARGAINING EXCEPTION WHILE STILL CONFORMING TO THE CONSTRAINTS OF THE PEARCE/BLACKLEDGE RULE, WITH DISCREPANCIES OCCURRING IN THE FOURTH CIRCUIT DECISIONS. FOOTNOTES ARE PROVIDED. (TWK)