选择性起诉是政府基于恶意,歧视性地进行刑事起诉裁量的行为,因其目的之恶以及违反法之平等精神而受抗辩。美国司法有两种抗辩途径:通过禁令救济提起民事侵权之诉和在刑事诉讼中提起选择性起诉抗辩。然而,美国法院对这两种救济都确立了难以逾越的证明责任,并且将其分配给了申请人。其中民事抗辩的“现实的、迫在眉睫的侵害的威胁”证明,刑事抗辩的不正当起诉标准证明,几乎将所有的申请人阻挡在抗辩门外。美国法院的这种态度是因为其实际并不愿意介入此种审查,根源主要在于司法系统对于分权原则下司法权的克制和对检察官自由裁量权的尊重传统。 Selective prosecutions are government defenses based on malicious and discriminatory criminal prosecutions, which are contested for their evil of purpose and for violating the law of equality. There are two ways in which American justice can defend itself: lodging a civil complaint through injunctive relief and instituting a selective prosecution defense in criminal proceedings. However, the U.S. courts have established insurmountable burden of proof on both remedies and assigned them to the applicants. Among them, the “defensive and imminent threat of civil aggression” of civil defense proves that the standard of improper prosecution of criminal defenses proves that almost all the applicants are blocked from the defense. This attitude of the U.S. courts is that its actual reluctance to intervene in such censorship lies primarily in the judicial system’s restraint of the judicial power under the principle of separation of powers and the tradition of respect for the discretion of the prosecutors.