Vindictive Prosecution and Selective Prosecution: How the Defence Is Proved

Last updated: 10 November 2026. This explainer is based on the US Supreme Court’s decisions in Yick Wo v. Hopkins (1886), Blackledge v. Perry (1974), United States v. Goodwin (1982), Wayte v. United States (1985) and United States v. Armstrong (1996), the Fourth Circuit’s decision in United States v. Wilson (2001), court reporting on the James Comey and Letitia James prosecutions up to 30 October 2026, and the Crown Prosecution Service’s legal guidance on abuse of process.

Short answer: A US defendant proves selective prosecution by showing the charge had a discriminatory effect and a discriminatory purpose, judged against similarly situated people who were not charged. Vindictive prosecution needs proof that the prosecutor acted out of animus and would not otherwise have charged, unless the facts raise a presumption. Both claims are hard to win, and even discovery requires real evidence first.

Key takeaways

• Selective prosecution is an equal protection claim: the defendant must show discriminatory effect and discriminatory purpose (Wayte, 1985).
• Vindictive prosecution is a due process claim: punishing someone for using a legal right. A presumption applies only where there is a “realistic likelihood of vindictiveness” (Blackledge, 1974), which courts rarely find before trial (Goodwin, 1982).
• Getting discovery is itself a hurdle. Armstrong (1996) requires a “credible showing” that similarly situated people were treated differently.
• The 2025 motions by James Comey and Letitia James were never decided on the merits. Both indictments were dismissed in November 2025 because the prosecutor who obtained them was unlawfully appointed.

What is the difference between vindictive and selective prosecution?

The two claims are often filed together, but they protect different rights and need different proof.

• Selective prosecution says: “You charged me, and not others in my position, because of who I am or what I said.” The classic grounds are race, religion or the exercise of protected rights such as free speech. It rests on equal protection, which applies to the federal government through the Fifth Amendment’s Due Process Clause.
• Vindictive prosecution says: “You charged me, or charged me more heavily, to punish me for doing something the law allows.” The classic trigger is a defendant who appeals, demands a jury trial or wins a retrial and then faces a harsher charge. It rests on due process.

Both are raised before trial, usually through a motion to dismiss the indictment, and the usual remedy is dismissal. Neither is a defence on the facts: a defendant can be guilty and still have the case thrown out if the decision to charge was unconstitutional.

How is selective prosecution proved?

The idea goes back to Yick Wo v. Hopkins (1886). San Francisco required laundries in wooden buildings to obtain the board of supervisors’ consent. Yick Wo and about 200 other Chinese applicants were refused, while all but one of the non-Chinese applicants were granted consent. The Supreme Court held that a law fair on its face but applied “with an evil eye and an unequal hand” still breaches equal protection.

The modern test comes from Wayte v. United States (1985). David Wayte wrote to the government saying he had not registered for the draft and would not. Selective Service followed a “passive enforcement” policy, prosecuting only men who reported themselves or were reported by others. Wayte argued he was singled out for his protest. The Court rejected the claim and set out two elements, both of which the defendant must prove:

1. Discriminatory effect. Similarly situated people who were not in the defendant’s group, or who did not exercise the protected right, could have been charged but were not.
2. Discriminatory purpose. The government acted “because of, not merely in spite of” the protected characteristic or activity.

The Court also explained why judges are cautious: the decision to prosecute is “particularly ill-suited to judicial review”, because it turns on the strength of the evidence, deterrence and enforcement priorities that courts are poorly placed to weigh.

How is vindictive prosecution proved?

There are two routes: a presumption, or proof of actual vindictiveness.

The presumption. In Blackledge v. Perry (1974), a North Carolina prisoner convicted of misdemeanour assault used his right to a fresh trial in a higher court. The prosecutor then indicted him for a felony based on the same fight. The Supreme Court held this breached due process. The Due Process Clause is offended only by situations that “pose a realistic likelihood of ‘vindictiveness'”, and raising the charge after a defendant exercised a right of appeal was one of them. Perry won through federal habeas corpus, even though he had pleaded guilty to the felony.

No presumption before trial. United States v. Goodwin (1982) limited the presumption. Goodwin was stopped for speeding on the Baltimore-Washington Parkway and charged with misdemeanours. When he said he wanted a jury trial, a prosecutor obtained a four-count indictment including a felony. The Court said a change in charges “after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision”, because early in a case prosecutors are still assessing the evidence. It refused to presume vindictiveness, while leaving the defendant free to prove actual vindictiveness. The Court had already held, in Bordenkircher v. Hayes (1978), that threatening heavier charges during plea bargaining is part of the normal “give-and-take” and is not vindictive.

Actual vindictiveness. Without a presumption, the defendant must prove the motive directly. The Fourth Circuit, which covers Virginia and North Carolina, set out the test in United States v. Wilson (2001). The defendant must show, through objective evidence, that “the prosecutor acted with genuine animus toward the defendant” and that “the defendant would not have been prosecuted but for that animus.”

How do the tests compare?

What does a defendant need to get discovery?

Most defendants cannot prove a prosecutor’s motive without the prosecutor’s own files, so discovery often decides the claim. United States v. Armstrong (1996) made that difficult. Black defendants charged with federal crack cocaine offences in the Central District of California argued they were chosen for federal prosecution because of their race. The Supreme Court held that discovery requires a “credible showing of different treatment of similarly situated persons”, meaning credible evidence that similarly situated defendants of other races could have been prosecuted but were not. The defendants’ evidence did not meet that standard, and the Supreme Court ruled for the government.

The Court grounded this in a “presumption of regularity” for prosecutorial decisions. In Wilson, the Fourth Circuit called the resulting standard “rigorous” and a “significant barrier”, applying it to vindictive prosecution discovery too. In practice, a defendant must already have objective evidence, such as public statements, documents or an unusual chain of events, before a court will let them see internal material.

What happened with the Comey and Letitia James motions?

These cases tested the doctrines more publicly than any in decades, but as of early November 2026 no court has ruled on the vindictive or selective prosecution claims in either case. This is where things stand, based on court reporting up to 30 October 2026.

• First Comey case (Eastern District of Virginia). A grand jury indicted the former FBI director on 25 September 2025 for making a false statement to Congress and obstructing a congressional proceeding, days before the five-year limitation period ran out. On 20 October 2025 his lawyers moved to dismiss for vindictive and selective prosecution. They relied on President Trump’s public post urging Attorney General Pam Bondi to act against Comey, Letitia James and Senator Adam Schiff, and on the departure of US Attorney Erik Siebert shortly before Lindsey Halligan was installed. Judge Michael Nachmanoff heard the motion on 19 November 2025 but did not rule.
• Letitia James. New York’s attorney general was indicted on 9 October 2025 on bank fraud and false statement charges linked to a mortgage, and also moved to dismiss for vindictive and selective prosecution.
• The Halligan ruling. On 24 November 2025 Senior Judge Cameron McGowan Currie held that Halligan had been unlawfully appointed as interim US attorney under 28 U.S.C. 546 and the Appointments Clause, because the 120-day interim period had already been used. She dismissed both indictments without prejudice, which left the vindictive prosecution motions undecided. Grand juries in Norfolk and Alexandria then declined to re-indict James in December 2025. The Justice Department appealed, and the Fourth Circuit heard argument on 15 September 2026. No decision had been reported by early November 2026.
• Second Comey case (Eastern District of North Carolina). On 28 April 2026 a grand jury indicted Comey for threatening the President over an Instagram photo of seashells arranged as “86 47”. In July 2026 his lawyers filed a new vindictive and selective prosecution motion, alongside a First Amendment challenge. On 25 September 2026 the judge postponed the arraignment to January 2027, with the motions reported as ripe for decision.
• A third matter. On 30 October 2026 Judge Trevor McFadden in Washington, DC put off ruling on Comey’s challenge to a criminal information about a 2016 media leak, giving prosecutors time to seek an indictment. That challenge is based on the limitation period, not vindictiveness.

Unlike most defendants, Comey and James could point to public statements from the head of the executive branch. That is the kind of objective evidence Wilson and Armstrong demand, which is why these motions drew so much attention. Whether it is enough has not yet been tested.

Why do these motions so rarely succeed?

• The presumption of regularity. Courts start from the assumption that prosecutors acted lawfully.
• The comparator problem. Selective prosecution needs people who were similarly situated in every relevant way but not charged, and those people are hard to identify.
• Motive is hidden. Prosecutors rarely state an improper reason, and the evidence that would show one is usually inside the government.
• Pretrial timing. After Goodwin, charging changes before trial rarely trigger a presumption.
• Mixed motives. Under the but-for test, a defendant can lose even with proof of animus if the court finds the case would have been brought anyway.

The cases that do win tend to have unusual facts: a heavier charge right after an appeal, as in Blackledge, or direct evidence of motive. For background on how the Supreme Court builds these lines of authority, see our list of landmark Supreme Court cases.

How do courts in England and Wales deal with improper prosecutions?

England and Wales have no separate doctrine called vindictive or selective prosecution. The equivalent tool is the court’s inherent power to stay proceedings as an abuse of process. The Crown Prosecution Service’s legal guidance on abuse of process describes two categories, which the court must consider separately:

• where the defendant cannot receive a fair trial; and
• where a stay is needed to protect the integrity of the justice system, even if a fair trial is possible.

The guidance cites cases including R v Horseferry Road Magistrates’ Court, ex parte Bennett. It says the power is to be used “only in exceptional circumstances” and is “a remedy of last resort”, and that it should not be used merely to discipline prosecutors where a fair trial remains possible. Complaints about how charges were chosen may need to show bad faith. The broad picture is similar to the US: a heavy burden, rare success, and courts reluctant to second-guess charging decisions.

Frequently asked questions

What is vindictive prosecution?

It is a due process claim that a prosecutor brought or increased charges to punish a defendant for exercising a legal right, such as appealing or demanding a jury trial. If proved, the usual remedy is dismissal of the charges, whatever the evidence of guilt.

What is the test for selective prosecution?

Under Wayte v. United States (1985), the defendant must prove discriminatory effect, meaning similarly situated people outside the defendant’s group were not charged, and discriminatory purpose, meaning the government acted because of the protected characteristic or activity, not merely in spite of it.

When is vindictiveness presumed?

Only where the circumstances show a realistic likelihood of vindictiveness, such as a harsher charge after a defendant appeals or wins a retrial, as in Blackledge v. Perry. Goodwin held that a presumption does not usually apply to charging changes made before trial.

Can a defendant get discovery to prove selective prosecution?

Only after a threshold showing. United States v. Armstrong requires a credible showing that similarly situated people were treated differently. Courts apply a similarly demanding standard to vindictive prosecution discovery, so the defendant needs objective evidence before seeing prosecutors’ internal files.

Did the courts rule on the Comey and Letitia James vindictive prosecution claims?

No. Both indictments were dismissed on 24 November 2025 because Lindsey Halligan was unlawfully appointed, so the vindictiveness motions were never decided. Comey’s separate motion in his 2026 North Carolina case was still pending as of early November 2026.

Is there a UK equivalent of vindictive prosecution?

Not as a named doctrine. Courts in England and Wales can stay a prosecution as an abuse of process if a fair trial is impossible or if continuing would damage the integrity of the justice system. A stay is exceptional and may require bad faith by the prosecution.

This article is general information about US federal criminal procedure and the law of England and Wales as of 10 November 2026. It is not legal advice. The cases described are ongoing, and anyone facing charges should speak to a qualified criminal defence lawyer.