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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. [J-100-2020] - 59 DOJ-OGR-00004872