Prosecutorial discretion has accustomed us to the idea that decisions on who to charge and whose crimes to ignore are virtually unreviewable. The exceptions are narrow: such as the constitutional bar on bills of attainder which may compel prosecution. Fairness defenses to prosecution are many but instances where prosecution is abandoned after a voluntary admission of guilt are unheard of.

But in this case it has been suggested that the decision to abandon a prosecution involved personal or political favoritism towards the defendant by higher authority. Federal Rule of Criminal Procedure 48, like our Rule of Court 3:25, requires judicial approval to dismiss an indictment. The drafting history of the rule is clear that it was intended to provide a judicial check on dismissals motivated by personal favor, political influence, or worse, in order to preserve the reputation of the criminal justice system for impartiality. When the prosecution joins the defense in requesting a dismissal for possibly illegitimate reasons, the court is without the usual aid of the adversary system in uncovering the underlying reasons.

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