Selective Prosecution

 

In West Virginia, selective prosecution is a constitutional defense based on the Equal Protection Clause of the Fourteenth Amendment and the state’s own constitutional guarantees. It asserts that while the defendant may have technically violated the law, the decision to prosecute was made on an unconstitutional, discriminatory basis.

The West Virginia Supreme Court of Appeals follows a rigorous standard—primarily the two-pronged test established in federal law (e.g., Wayte v. United States and United States v. Armstrong) and applied within state precedents.

1. The Two-Pronged Legal Test

To succeed on a claim of selective prosecution in West Virginia, a defendant must prove both of the following elements:

• Discriminatory Effect: The defendant must show that other individuals who were "similarly situated" (committed the same acts) were not prosecuted.

• Discriminatory Purpose/Intent: The defendant must prove that the decision to prosecute was motivated by an "impermissible standard," such as:

  • Race, religion, or gender.

  • Exercise of a protected constitutional right (e.g., freedom of speech or political affiliation).

  • Arbitrary or malicious classifications.

2. The "Presumption of Regularity"

West Virginia law grants prosecutors a presumption of regularity. Courts assume that prosecutors have properly discharged their official duties unless "clear evidence to the contrary" is presented.

• Prosecutorial Discretion: Prosecutors have broad latitude to decide whom to charge and what charges to bring.

• Mere Selectivity is Not Enough: Simply showing that others were not prosecuted for the same crime is insufficient. You must prove the reason for the selection was intentionally discriminatory.

3. Key Procedural Hurdles

The biggest challenge in these cases is the "Catch-22" regarding discovery:

• High Threshold for Discovery: To get access to the prosecutor’s files or internal emails to prove intent, a defendant must first provide some evidence of both discriminatory effect and intent.

• Pre-Trial Motion: Selective prosecution is considered a "defect in the institution of the prosecution" rather than a defense to the crime itself. It must typically be raised in a pre-trial motion to dismiss.

4. Relevant West Virginia Authority

While specific case names vary, the state’s framework relies heavily on:

• West Virginia Code § 7-4-1: Outlines the general duties and broad discretionary powers of the Prosecuting Attorney.

• State v. Barker (and similar cases): West Virginia courts often cite that a "conscious exercise of some selectivity in enforcement is not in itself a federal or state constitutional violation" unless it is based on an unjustifiable standard.

Summary Table for Claims

Element	What You Must Show
Comparator	Specific examples of people who did the same thing but weren't charged.
Motive	Direct or circumstantial evidence of bias (e.g., political retaliation or racial profiling).
Burden of Proof	The burden is on the defendant to overcome the presumption of prosecutorial honesty.

Disclaimer: I am an AI, not an attorney. This information is for research purposes and does not constitute legal advice. For specific legal challenges in Pocahontas County or elsewhere, you should consult with a licensed West Virginia attorney.