What is the difference between selective prosecution and vindictive prosecution?

Little substantive difference can be detected between selective prosecution and vindictive prosecution. Vindictive prosecution arises only where the government increases the severity of alleged charges in response to a defendant's exercise of constitutional rights. See United States v. Burt, 619 F.2d 831, 836 (9th Cir. 1980); see generally, United States v. Groves, 571 F.2d 450, 453 (9th Cir. 1978) (vindictive prosecution claim brought after new charges were filed following defendant's motion to dismiss on speedy trial grounds); United States v. DeMarco, 550 F.2d 1224, 1226 (9th Cir.), cert. denied, 434 U.S. 827, 98 S.Ct. 105, 54 L.Ed.2d 85 (1977) (vindictive prosecution claim brought when new indictment filed after defendant successfully moved for a change of venue).

Selective prosecution challenges arise when a defendant alleges that he is being prosecuted initially for having exercised a constitutional right. See United States v. Oaks, 527 F.2d 937, 940 (9th Cir. 1975), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976). The interests involved are the same as in vindictive prosecution cases: the defendant seeks protection from criminal prosecution initiated punitively, in response to the exercise of his constitutional rights.

To be heard, all interlocutory appeals must meet three criteria.

"First, there ... (has) to be a complete and final determination of the issue in the district court. No appeal may be taken if the matter was left, 'open, unfinished or inconclusive.' ... Second, the decision .... (can) not be simply a 'step toward final disposition of the merits of the case (that would) be merged in the final judgment'; rather, it must resolve an issue wholly collateral to the actual cause of action asserted.... Finally, the rights involved in the decision would be 'lost, probably irreparably,' if appellate review was postponed until final judgment...." United States v. Griffin, 617 F.2d at 1344.