Modifying Double Jeopardy
New Criminal Law Review, Vol. 15, No. 4, 2012
31 Pages Posted: 14 Dec 2012 Last revised: 30 Sep 2013
Date Written: July 1, 2011
The question raised concerns the philosophical basis of that part of the Constitutional ban on double jeopardy which forbids the state from retrying criminal defendants for the same crimes of which they have earlier been acquitted. A procedure for permitting the retrial of such defendants is developed and defended. This procedure would allow acquittals to be quashed if state officials can convince a court that they have fresh, reliable, and compelling evidence of a person’s guilt. The stock arguments in favor of a ban on double jeopardy are considered in light of this proposal and shown to be unpersuasive. A variety of other arguments against the proposal are likewise shown to be unconvincing. Particular attention is paid to the concern that the procedure might produce convictions of innocent people. This possibility is shown to be remote and thus not a reasonable ground for refusing to attempt to correct substantively mistaken acquittals.
Keywords: criminal procedure, double jeopardy, legal error
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