State v. Gilbert’s Empirical Analysis

Citation profile

11 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 12 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “The defense of selective prosecution is part of a web of constitutional constraints that overlie the discretionary powers accorded to prosecuting authorities. So long as the prosecutor has probable cause to believe that a suspect has committed an offense defined by statute, the decision whether to prosecute, and what charge to file, rests in the prosecutor’s discretion. Bordenkircher v. Hayes, 434 U.S. 357 , 98 S.Ct. 663 , 54 L.Ed.2d 604 (1978). Such discretion is allowed because a decision to prosecute is generally ill-suited to judicial review. Wayte v. United States, 470 U.S. 598 , 105 S.Ct. 1524 , 84 L.Ed.2d 547 (1985). Nevertheless, the Supreme Court in Wayte has recognized a defense of selective prosecution and has outlined its substantive elements. A defendant bears the burden of establishing (1) that he was singled out for prosecution and (2) that the decision to prosecute him, rather than other persons, was based upon an impermissible factor such as race, religion or the exercise of a constitutional right. Id. [Citations omitted.] The defense may be established by showing that the state selected the defendant from a larger group of non-prosecuted alleged violators because of his exercise of a constitutional right. [Citation omitted.] However, incomplete enforcement of the laws, standing alone, does not offend the federal or state constitution. [Citations omitted.]”

   1 later decision quote this exact passage
   e.g. State v. Campbell