Supreme Court based the Blackledge holding on the
possibility of prosecutorial vindictiveness and retaliation
for a defendant’s exercising the statutory right to a trial de
novo after a successful appeal.
In Thigpen v. Roberts, 468 U.S. 27 (1984), a
presumption of vindictiveness arose under the due
process clause when the State prosecuted defendant for a
felony after he successfully appealed misdemeanor traffic
convictions based on the same incident. The Court
analogized this case to a court’s imposing a stiffer
sentence, absent articulable reasons, after a successful
appeal and reconviction. Relying on Blackledge v. Perry,
the Court noted that the post-appeal felony indictment
suggested that the State was retaliating against defendant
for lawfully attacking the original conviction. (See also,
INDICTMENT, this Digest).
In State v. Bauman, 298 N.J. Super. 176 (App. Div.),
certif. denied, 150 N.J. 25 (1997), defendant failed to
demonstrate any vindictiveness by the prosecutor in
obtaining a superseding 39-count indictment after
defendant failed to enter into plea bargain on 29 charges
originally filed against him, where evidence supporting
additional charges in the superseding indictment was
presented to original grand jury, and it could be inferred
that additional charges were omitted from original
indictment through inadvertence. Mere fact that
defendant refused to plead guilty and forced government
to prove its case was insufficient to support presumption
that subsequent changes in charging decision, which
resulted in substitution of 39-count indictment for
original 29-count indictment, was result of prosecutorial
vindictiveness.
State v. Harris, 141 N.J. 525 (1995), held the
decision to seek death penalty after offering plea to life
sentence was not abuse of prosecutorial discretion;
prosecution’s original decision to proceed with trial as
capital case continued to be appropriate when defendant
chose not to plead.
State v. Long, 119 N.J. 439 (1990), concluded the
presumption did not arise that prosecution’s adding of
four charges to superseding indictment was result of
prosecutorial vindictiveness due to defendant’s successful
challenge to county’s jury selection process, where the
four new charges could not result in more severe
punishment than those in original indictment.
In State v. King, 215 N.J. Super. 504 (App. Div.
1987), the state prosecution of defendant, who had been
convicted on federal bank robbery charges, for crimes
arising from a police chase following that robbery did not
constitute prosecutorial vindictiveness, as the events
could be broken up into two separate occurrences.In State v. Antieri, 186 N.J. Super. 20 (App. Div.
1982), certif. denied, 91 N.J. 546 (1982), a new trial
following a mistrial because of the jury’s inability to reach
a verdict does not constitute prosecutorial vindictiveness
when defendant was retried on the same charges. The
prosecutor’s action in obtaining a second, revised,
indictment did not violate due process since it neither
increased the number of offenses nor the potential
penalty.United States v. Goodwin, 457 U.S. 368 (1982).
Increasing charges before trial against a defendant who
exercises his right to a jury trial does not create a
presumption of vindictiveness, in violation of due
process. Defendant bears the burden of demonstrating
that the prosecutor’s decision to enhance the charges was
motivated by defendant’s election to seek a jury trial. The
Court distinguished Blackledge because, in this case, the
prosecutor filed more serious charges before trial, rather
than after the post-trial exercise of legal rights.It is improper for a prosecutor, without support in
the evidence, to accuse a defendant of conspiring with his
counsel to conceal and distort the truth. State v. Bauman,
298 N.J. Super. 176, 209 (App. Div.), certif. denied, 150
N.J. 25 (1997); State v. Setzer, 268 N.J. Super. 553, 565
(App. Div. 1993), certif. denied, 135 N.J. 468 (1994);
State v. Sherman, 230 N.J. Super. 10, 19 (App. Div.
1988).In State v. Brown, 118 N.J. 595 (1990), the Court
held that evidence of pre-arrest silence, particularly in the
absence of official interrogation, does not violate any right
of the defendant involving self-incrimination. The
probative worth of such pre-arrest silence should be
considered objectively and neutrally, without added
coloration attributable to any legal right in such silence.Relying on Brown and Jenkins v. Anderson, 447 U.S.
231 (1980), the Appellate Division, in State v. Dreher,
302 N.J. Super. 408 (App. Div.), certif. denied, 152 N.J.
10 (1997), cert. denied, 524 U.S. 943 (1998), held that
using prearrest silence to impeach a defendant does not
violate either the Fifth Amendment prohibition against
self-incrimination or the Fourteenth Amendment
guarantee of due process. The court went further and
held that where there is no governmental compulsion
associated with defendant’s prearrest silence, evidence of
that silence is admissible for any relevant purposes