Vindictive Prosecution in Texas Federal Crimes Cases

At the federal level, prosecutors are given wide latitude when it comes to determining what criminal charges to bring. The courts will rarely review these decisions, and most of the time a defendant will have few if any options to question their prosecution at trial.

That being said, there are circumstances where the decision to bring criminal charges against you can violate your due process rights. If the United States Attorney prosecutes you for a crime based on some type of retaliatory motive, you could use this vindictive prosecution as a defense to your charges.

Establishing a defense of vindictive prosecution is never easy. If you believe you were wrongly charged with a federal crime in the Houston area, let a board-certified expert in criminal defense law walk you through your options. Contact attorney Doug Murphy as soon as possible.

Understanding the Vindictive Prosecution Defense

Vindictive prosecution is a so-called notice and pretrial defense. It falls into this category because there are hoops you must jump through prior to trial to use this defense. A failure to take these steps could prevent you from presenting your defense.

The crux of this defense centers on your claim that the government has violated your due process rights. This defense comes into play when the prosecution brings federal charges against as retaliation for you exercising your legal rights. In fact, there is a presumption of vindictiveness when the course of events gives you no reason to believe the government acted with anything but a retaliatory motive. This defense is not only viable when the prosecution brings charges for retaliatory reasons. Any action – from changing a plea bargaining position to re-filing dismissed charges – could lead to a claim of vindictive prosecution if the government's motives were retaliatory.

The burden of establishing vindictiveness varies depending on whether or not the court finds a presumption in your favor. If the court presumes that the government acted vindictively, the burden is on the prosecution to prove by a preponderance of the evidence otherwise. If the defense cannot establish a presumption, the burden of proving this defense falls directly upon the defendant. To prevail at trial, the defendant must prove this defense by a preponderance of the evidence.

Vindictive prosecution is not a defense that can be sprung at trial. Instead, the defendant must file a pretrial motion to raise this defense. This is understandable, as the court must determine if there is a presumption of vindictiveness before the trial starts. Like with any notice defense, the failure to file this motion will prevent you from raising the defense at trial.

There are four elements to a claim of vindictive prosecution. First, the defense must show that they exercised some sort of protected right. This could be anything from exercising the right to vote or the right to free speech. The most common examples involve a defendant exercising their rights during the criminal justice process. This includes moving for a retrial or filing an appeal. Second, there must be a prosecutorial stake in the exercise of the right. Third, the prosecutor's conduct must be unreasonable given the circumstances. Generally, this involves bringing criminal charges when they otherwise wouldn't. Fourth, the defense must show the prosecution intended to punish the defendant for exercising their protected rights.

Developing a Defense Strategy

Because the rights afforded to you during the criminal justice process are so broad, there is no straightforward way to identify if you are facing retaliation for exercising your rights. This means it is not uncommon for there to be no direct precedent that covers the fact pattern in your case. To successfully use this defense, your legal counsel will need to establish the likelihood that the prosecutor's motive was vindictive. It is not to show that the government was retaliating against you for your words or actions. This retaliation must be the result of the exercise of your legal rights. The courts will determine the existence of a vindictive motive on a case-by-case basis.

When it comes to retaliation, there are many acts a prosecutor could make that qualify. One example is the prosecution “upping the ante” when a defendant exercises their legal rights. This could include bringing additional charges or upgrading the charges. When the prosecution ups the ante, the court will carefully look at the timing of the decision.

If your attorney establishes evidence of vindictiveness, the government has the right to offer objective factors that counter it. In general, this evidence could establish that the prosecution learned of new evidence that necessitated the additional charges. The government could even claim mistake or oversight as the cause of the charging decision in an effort to counter evidence of vindictiveness. Your attorney can carefully evaluate this evidence and show the jury that the government's efforts are intended to cover for their vindictive prosecution.


A vindictive prosecution defense is complex. Examples can provide a helpful way to understand how the defense works. Consider the following examples.

Example #1

Tad has been charged with one count of distributing a controlled substance. The prosecutor, hoping Tad would quickly plead guilty and not drag the case out, aggressively pushed a plea on the single count. Despite the pressure to plead guilty, Tad hired a lawyer and refused the plea. In retaliation, the prosecution filed additional charges they had initially ruled out. Tad could make use of the vindictive prosecution defense.

Example #2

Consider the above example. This time, the prosecution obtained video evidence of several other drug transactions they were not originally aware of. Based on this new evidence and not on Tad's decision not to plead guilty, the prosecution filed additional charges. The vindictive prosecution defense might not be successful under these circumstances.

How an Experienced Board-Certified Criminal Attorney Can Help

Given the nuance of this defense, it is vital that you seek the assistance of legal counsel right away. However, not every attorney will be capable of taking on this defense. Reach out to the Doug Murphy Law Firm, P.C. to discuss your options with a board-certified expert in criminal defense law.

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If you are facing DWI or other criminal charges in Texas, contact our office today to discuss your case, so we can begin working on your defense. Please provide only your personal email and cell phone number so that we can immediately and confidentially communicate with you.