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Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause

Jordan M. Barry

University of San Diego School of Law

Stanford Law Review, Forthcoming
San Diego Legal Studies Paper No. 11-058

In certain circumstances, a prisoner who challenges her conviction must convince a court that she is actually innocent in order to get relief. Unfortunately, such judicial exonerations often fail to persuade prosecutors, who are generally free to retry prisoners who successfully challenge their convictions. There have been several instances in which prisoners have convinced courts of their innocence and overturned their convictions, only to have prosecutors bring the exact same charges against them a second time. This Article argues that the Double Jeopardy Clause protects these exonerated defendants from the ordeal of a second prosecution. Permitting prosecutors to continue to pursue such individuals contradicts established Supreme Court case law, violates the policies animating the Double Jeopardy Clause, and impairs the operation of the criminal justice system.

Number of Pages in PDF File: 52

Keywords: Habeas Corpus, Double Jeopardy, Innocence, Wrongful Convictions, Criminal Law, Criminal Procedure, Procedural Default, Exhaustion, Actual Innocence, Federal Courts

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Date posted: February 11, 2011 ; Last revised: June 9, 2011

Suggested Citation

Barry, Jordan M., Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause. Stanford Law Review, Forthcoming; San Diego Legal Studies Paper No. 11-058. Available at SSRN: http://ssrn.com/abstract=1758161

Contact Information

Jordan Barry (Contact Author)
University of San Diego School of Law ( email )
5998 Alcala Park
San Diego, CA 92110-2492
United States
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