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Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 60 of 80

traditions and conscience of our people as to be ranked as fundamental and that defines
the community’s sense of fair play and decency.” Commonwealth v. Kratsas, 764 A.2d
20, 27 (Pa. 2001) (cleaned up). Due process is a universal concept, permeating all
aspects of the criminal justice system. Like other state actors, prosecutors must act within
the boundaries set by our foundational charters. Thus, we discern no cause or reason,
let alone any compelling one, to waive the prosecution’s duty to comply with due process
simply because the act at issue is an exercise of discretion, e.g., whether or not to charge
a particular suspect with a crime.

That is not to say that each and every exercise of prosecutorial discretion with
regard to charging decisions invites a due process challenge. Charging decisions inhere
within the vast discretion afforded to prosecutors and are generally subject to review only
for arbitrary abuses. A prosecutor can choose to prosecute, or not. A prosecutor can
select the charges to pursue, and omit from a complaint or bill of information those
charges that he or she does not believe are warranted or viable on the facts of the case.
A prosecutor can also condition his or her decision not to prosecute a defendant. For
instance, a prosecutor can decide initially not to prosecute, subject to possible receipt or
discovery of new inculpatory evidence. Or, a prosecutor can choose not to prosecute the
defendant at the present time, but may inform the defendant that the decision is not final
and that the prosecutor may change his or her mind within the period prescribed by the
applicable statute of limitations. Similarly, there may be barriers to a prosecution, such
as the unavailability of a witness or evidence, which subsequently may be removed, thus
enabling a prosecution to proceed. Generally, no due process violation arises from these
species of discretionary decision-making, and a defendant is without recourse to seek the
enforcement of any assurances under such circumstances.

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