Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause

52 Pages Posted: 11 Feb 2011 Last revised: 20 Jul 2015

See all articles by Jordan M. Barry

Jordan M. Barry

University of San Diego School of Law


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.

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

Suggested Citation

Barry, Jordan, Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause. 64 Stanford Law Review 535 (2012), San Diego Legal Studies Paper No. 11-058, Available at SSRN:

Jordan Barry (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics