The defense raises selective prosecution through a pretrial motion to dismiss under RCM 907, alleging unconstitutional discriminatory enforcement. The motion must present prima facie evidence of both discriminatory effect and discriminatory purpose. Discriminatory effect requires showing similarly situated individuals weren’t prosecuted, typically through statistical evidence or specific comparator examples. Discriminatory purpose means the decision to prosecute was based on impermissible factors like race, religion, or exercise of constitutional rights.
Initial showings often rely on affidavits, statistical analyses, or pattern evidence suggesting disparate treatment. If the defense makes a credible threshold showing, they may be entitled to discovery of government charging decisions and policies. This discovery can include prosecution memoranda, charging statistics, and communications about the decision to prosecute. The burden remains on the defense throughout to prove purposeful discrimination by clear and convincing evidence.
Military courts recognize commanders’ broad discretion in maintaining good order and discipline, making selective prosecution claims particularly challenging. The defense must show more than different treatment – there must be evidence of intentional discrimination without legitimate military purpose. Factors like rank, position, unit, deployment status, or criminal history may justify different treatment. Success requires compelling evidence that the prosecution targeted the accused for impermissible reasons while ignoring similar misconduct by others. Remedies include dismissal with prejudice, though courts rarely grant such extraordinary relief.