Lawyers — prosecutors and criminal defense lawyers — are required to litigate cases in good faith. If not, there will be a price to pay — a price determined by the judge who observed the bad faith conduct.
The 11th U.S. Circuit Court of Appeals in U.S. v. Shaygan, however, decided in a 2-1 opinion on Aug. 29 that a prosecutor’s subjective bad faith intentions are irrelevant for purposes of the Hyde Amendment, which permits a prevailing criminal defendant to recover fees and costs for a prosecution that is frivolous, vexatious or in bad faith. So long as a prosecution has a valid reason for proceeding, any number of bad faith reasons does not matter. It is a stunning position not even advocated by the government in its briefs before the appellate court.
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