In order for a defendant to obtain discovery from the
government to assist in his claim of selective prosecution,
the defendant must first present “some evidence” of each
of the elements of selective prosecution, as discussed
below. While recognizing that such a standard was
rigorous, the Court concluded that it was necessary in
order to avoid insubstantial claims by defendants.
To prevail on a claim of selective prosecution, the
defendant must provide “clear evidence” to overcome the
presumption that the prosecutor has not acted
unconstitutionally, given the general deference to which
prosecutorial decisions are entitled. However, the
requirements for showing discrimination in the
prosecution process draw on “ordinary equal protection
standards.” Thus, the defendant must show that
similarly situated individuals of a different class were not
prosecuted for similar crimes. In other words, in order to
prevail on a selective prosecution claim, a defendant must
prove that the prosecutorial policy “had a discriminatory
effect and that it was motivated by a discriminatory
purpose,’ “ and that “similarly situated individuals of a
different race” were treated differently.
State v. Ballard, et al., 331 N.J. Super. 529 (App. Div.
2000). The Appellate Division consolidated these cases
after the State moved for leave to appeal. The State had
challenged conflicting discovery orders entered in
Bergen, Burlington, and Hunterdon Counties regarding
document discovery arising from claims that the State
Police had selectively enforced the motor vehicle laws
against minority drivers, so-called “racial profiling.”
After discussing the standards set forth United States v.
Armstrong, 517 U.S. 456 (1996), and State v. Kennedy,
247 N.J. Super. 21 (App. Div. 1991), for a defendant to
obtain discovery regarding alleged selective prosecution,
the court held that these defendants had satisfied that
threshold. The court based its decision, in part, on the
April 1999 Attorney General’s Interim Report on the State
Police which revealed that the State Police, as an
organization, may have treated minorities differently
during routine traffic stops. The State will have the
opportunity, however, to challenge, at the pre-discovery
stage, defendants who claim to have been profiled, by
proving, on a case-by-case basis, that a particular stop was
non-discretionary and that the trooper’s post-stop
conduct was not discriminatory. The court determined
that the differing scope of discovery granted, just in these
three counties, proved the need for uniformity. To
achieve that uniformity, the court held that the statewide
judge designated by the New Jersey Supreme Court was
best suited to determine the final scope of discovery.
Regarding the discovery issues raised, the court did
comment, however, 1) that the lower court should not
release drafts of the Interim Report or any other official
documents or reports, absent an actual showing of
particularized need, 2) that the State need not produce
documents prepared in response to the Report reflecting
subsequent remedial efforts, 3) that the State need not
create data compilations for the defendants that do not
already exist, so long as it provides the underlying
records, and 4) open investigative files involving
specifically named troopers need not be produced unless
the trial court, after in camera review, determines there is
a sufficient need which overcomes the State’s interest in
keeping open investigations confidential.Whren v. United States, 517 U.S. 806 (1996), held
that claims of selective prosecution arising from an arrest
following a search and seizure are based on the equal
protection clause, not the Fourth Amendment.State, v. Schad, 160 N.J. 156 (1999). Under the
equal protection clause, government is afforded broad
discretion to decide whom to prosecute based on such
factors as strength of case and general deterrence value.
Conscious exercise of some selectivity in enforcement of
ordinance does not violate equal protection unless
decision to prosecute is based on unjustifiable standard
such as race, religion, or other arbitrary classification.
Town sign ordinance was not selectively enforced against
operator of adult entertainment businesses, in violation
of equal protection, where zoning officials initiated
dialogue with operator before issuing citations, operator
refused to take corrective action, other potential violators
cooperated with town and ceased their potentially illegal
activity, and there was no evidence that town failed to
prosecute any similar violators.Township of Saddle Brook v. A.B. Family Center, 307
N.J. Super. 16 (App. Div. 1998), aff’d, 156 N.J. 587
(1999), held that the mere fact that a law has not been
fully enforced against others does not give defendant the
right to violate it. The party asserting selective
enforcement of law has heavy burden of proof. In this
case, however, the record demonstrated that the
township selectively enforced its site plan, parking, and
sign requirements, so as to prevent operation of an adult
video and bookstore.State v. Smith, 306 N.J. Super. 370 (App. Div. 1997).
The constitutionality of a search and seizure is not based
upon an individual officer’s underlying motives, but
rather on whether objectively reasonable actions are
supported by probable cause. Further, the alleged
motives of an individual police officer are not enough to