What is the test for determining whether the prosecution acted maliciously or in bad faith in seeking a charge of assault with intent to pervert the course of justice?

The court reached this conclusion despite the lack of evidence that the prosecution acted maliciously or in bad faith in seeking the felony charges. The court emphasized that actual retaliatory motivation need not be shown. Rather, due process dictates that a defendant may not be deterred from exercising his constitutional right to attack his conviction by the possibility of prosecutorial retaliation. (Blackledge v. Perry, supra, 417 U.S. at p. 28, 94 S.Ct. at p. 2102.)