US SUPREME COURT DECISIONS

After initially expressing an interest in plea bargaining on misdemeanor charges, respondent decided not to plead guilty and requested a trial by jury. While the misdemeanor charges were still pending, he was indicted and convicted in Federal District Court on a felony charge arising out of the same incident as the misdemeanor charges. Respondent moved to set aside the verdict on the ground of prosecutorial vindictiveness, contending that the felony indictment gave rise to an impermissible appearance of retaliation. The District Court denied the motion. The Court of Appeals reversed, holding that, although the prosecutor did not act with actual vindictiveness in seeking a felony indictment, the Due Process Clause prohibits the Government from bringing more serious charges against the defendant after he has invoked his right to a jury trial, unless the prosecutor comes forward with objective evidence that the increased charges could not have been brought before the defendant exercised his right. Believing that the circumstances surrounding the felony indictment gave rise to a genuine risk of retaliation, the court adopted a legal presumption of prosecutorial vindictiveness.

Held: A presumption of prosecutorial vindictiveness was not warranted in this case, and absent such a presumption, no due process violation was established. Pp. 457 U. S. 372-384.

(a) In cases in which action detrimental to a defendant has been taken after the exercise of a legal right, the presumption of an improper vindictive motive has been applied only where a reasonable likelihood of vindictiveness existed. North Carolina v. Pearce, 395 U. S. 711; Blackledge v. Perry, 417 U. S. 21. Cf. Bordenkircher v. Hayes, 434 U. S. 357. Pp. 457 U. S. 372-380.

(b) A change in the prosecutor's charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision. It is unrealistic to assume that a prosecutor's probable response to such pretrial motions as to be tried by a jury is to seek to penalize and to deter. Here, the timing of the prosecutor's action suggests that a presumption of vindictiveness was not warranted. A prosecutor should remain free before trial to exercise his discretion to determine the extent of the societal interest in the prosecution. The initial chanrobles.com-red

Page 457 U. S. 369

charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution. Bordenkircher, supra. Pp. 457 U. S. 380-382.

(c) The nature of the right asserted by respondent confirms that a presumption of vindictiveness was not warranted in this case. The mere fact that a defendant refuses to plead guilty and forces the government to prove its case is insufficient to warrant a presumption that subsequent changes in the charging decision are unwarranted. Bordenkircher, supra. Pp. 457 U. S. 382-383.

(d) The fact that respondent, as opposed to having a bench trial, requested a jury trial does not compel a special presumption of prosecutorial vindictiveness whenever additional charges are thereafter brought. While there may have been an opportunity for vindictiveness here, a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule. The possibility that a prosecutor would respond to a defendant's pretrial demand for a jury trial by bringing charges not in the public interest that could be explained only as a penalty imposed on the defendant is so unlikely that a presumption of vindictiveness is certainly not warranted. Pp. 457 U. S. 383-384.

637 F.2d 250, reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J.,and WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post at 457 U. S. 385. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post at 457 U. S. 386.