8 - Double Jeopardy and False Acquittals: Letting Felons and Judges off the Hook?

Summary

Whenever, and by whatever means, there is an acquittal in a criminal prosecution, the scene is closed and the curtain drops.

– U.K. Solicitor General

Insulation [from appealing an acquittal] is an arbitrary windfall to the guilty, not a carefully structured scheme to protect the innocent…. A defendant has no vested right to a legal error in his favor.

– Akhil Amar

The community incurs an incalculable expense when the vast machinery constructed to bring criminals to justice can be felled by the simple error of a single unreviewable judge.

– Scott Shapiro

The Core Problem

The preceding four chapters have examined some rules of evidence that are epistemically counterfeit. We turn now to look at some procedural rules that pose similar kinds of problems. I will focus on what is probably the single largest source of avoidable error in the judicial system: the asymmetry of the appellate process.

As we turn from evidence to procedures, our philosophical criteria of evaluation must likewise shift. Relevance is no longer the guiding metaprinciple since procedural rules do not concern themselves with the admission of evidence perse. As I indicated in Chapter 5, when it comes to the evaluation of procedures, the appropriate meta-rules stress the importance of both maximizing the likelihood that a jury will reach a valid verdict and ensuring that the system is capable of catching and correcting (some of) the mistakes that it does make.