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The other side of double jeopardy

February 24th, 2003

There’s recently been some debate, notably on Ken Parish’s blog, about proposals to modify the principle of double jeopardy, under which a person cannot be tried twice for the same crime, even if new evidence emerges after an original acquittal. The other side of this coin is that, in the absence of some procedural flaw, a conviction cannot be overturned even if new evidence proves that the person convicted was innocent. This is particularly problematic in the US where the death penalty is involved. The NYT reports this exchange between a judge and prosecutor

Judge Stith, of the Missouri Supreme Court, was getting exasperated. “Are you suggesting,” she asked the prosecutor, that “even if we find Mr. Amrine is actually innocent, he should be executed?”
Frank A. Jung, an assistant state attorney general, replied, “That’s correct, your honor.”

I haven’t thought through all the consequences but it seems to me that, at least in the case of murder, the public interest in finality of criminal proceedings is outweighed by the need to have justice done. One possible solution would be to have some independent body that could evaluate claims from either prosecutors or those convicted of murders that cases should be reopened in the light of new evidence.

Questions of legal costs are also important. In the case of a second prosecution, costs should automatically be borne by the prosecution, regardless of the outcome of the case. This would provide a check on the abuse of process potentially involved in retrying someone who has previously been acquitted.

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