The Expectation of Incorrect Acquittals and the Potential of Double Jeopardy Exceptions
Criminal Law Review, No. 2, pp. 63-79, 2009
33 Pages Posted: 9 Nov 2011
Date Written: November 2011
Abstract
A number of common law jurisdictions have recently created exceptions to the ancient protection against double jeopardy. Acquittals may be overturned if they are ‘tainted’, or where there is ‘new (or fresh) compelling evidence’ of guilt. These relatively narrow exceptions are subject to further restrictions; for example, they only apply to the most serious offenses. And, in the first few years that they have been on the statute books, they have scarcely been used. The legislative and policy shift from finality to accuracy appears to have been symbolic. However, this paper, through an examination of the likely rate of mistaken acquittals, and the legislative scope of the exceptions, argues that there is the potential for far greater numbers acquittals to be overturned. The low use of the exceptions appears to be a product of attitudinal resistance and lack of resources rather flowing from restrictions inherent in the legislation.
Keywords: double jeopardy, criminal procedure, miscarriage of justice, fact-finding, proof, probability
JEL Classification: K10, K14, K30
Suggested Citation: Suggested Citation