The Power of the Judiciary to Dismiss Criminal Charges after Several Hung Juries: A Proposed Rule to Control Judicial Discretion
Michael A. Berch
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Loyola Los Angeles Law Review, Vol. 30, p. 535, 1997
In 1966 approximately five percent of the cases that proceeded to trial ended in deadlocked juries. That percentage has probably increased since then. The occurrence of a small percentage of deadlocked juries, however, is not necessarily a symptom that something is wrong with the criminal justice system. Instead, it may demonstrate that the system truly works. There will always be cases in which the requisite number of jurors simply cannot agree on a verdict.
This article examines a separate issue: How many times may the state retry a defendant whom it has been unable to convict? At what point should the court simply refuse to hear the case and declare that an impasse has been reached? These questions implicate several legal, political, and ethical issues. This article concludes that double jeopardy is not the source of the courts' power to dismiss a prosecution after several hung juries. Another principle that may limit the prosecutor's right to repeated attempts to obtain a conviction is the courts' inherent power, also referred to as the courts' supervisory role, in the administration of justice. Several courts have already recognized this power to bar repeated prosecutions. Others have denied it. This article turns to an analysis of the principles that underlie and the significant cases that explore the nature of the courts' inherent power. This article also reviews the factors that the court should appropriately consider in exercising its discretion in a particular case and examines whether the dismissal should be with or without prejudice.
Number of Pages in PDF File: 30
Keywords: double jeopardy, criminal procedure, juryAccepted Paper Series
Date posted: May 28, 2009
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