Selective enforcement claims require the defense to demonstrate both discriminatory effect and discriminatory intent during pretrial motions to dismiss. The accused must first show that similarly situated service members who committed comparable minor infractions were not prosecuted, establishing a pattern of unequal treatment. This typically requires statistical evidence or specific examples of others who engaged in identical conduct without facing charges.
The more challenging element involves proving discriminatory intent – that the command specifically targeted the accused based on impermissible factors like race, religion, or protected First Amendment activities. Courts recognize that commanders have broad discretion in maintaining good order and discipline, including deciding which violations warrant prosecution. Minor infractions often involve discretionary enforcement, but this discretion cannot be exercised in a constitutionally impermissible manner.
Military judges apply heightened scrutiny to selective prosecution claims while acknowledging command prerogatives. The defense must present clear evidence beyond mere speculation or appearance of unfairness. Successfully proving selective enforcement can result in dismissal of charges, but courts rarely grant such relief absent compelling evidence of intentional discrimination. The burden remains on the defense throughout, as there’s a presumption that prosecutors act in good faith when exercising charging discretion.