The John M. Olin Center

Paper Abstract

315. Vikramaditya S. Khanna, How Does Double Jeopardy Help Defendants?, 02/2001; subsequently published as "Double Jeopardy's Asymmetric Appeal Rights: What Purpose Do They Serve?" in Boston University Law Review, Vol. 82, April 2002, 341.

Abstract: Double Jeopardy has a long history in Anglo-American jurisprudence, but there has been little analysis of it from a functional perspective. This paper begins to address this gap by examining the incentive effects of the asymmetric appeal rights attached to Double Jeopardy. By this I mean the fact that in the US the defendant can appeal convictions, but the prosecution has highly attenuated rights to appeal acquittals.

On first blush this rule seems like it must unambiguously benefit defendants, but the critical question for this paper is how does it benefit defendants. The most common response is that the rule benefits defendants because it prevents the government from trying to overturn initial trial acquittals on appeal (thereby preventing false convictions from appeals) and saves the defendant from having to bear the costs of these appeals. However, I argue that the effects of asymmetric appeal rights are, on closer inspection, considerably more complex than they might appear at first blush. Indeed, the primary conclusion of this paper is that we may need to consider other justifications for asymmetric appeal rights besides error costs and litigation costs.

In particular, my analysis suggests that reducing false convictions is not the only effect of asymmetric appeal rights. Asymmetric appeal rights, which give the prosecution only one shot at obtaining a conviction (i.e., the initial trial), may induce the prosecution to spend even more in the initial trial than would be the case if appeal rights were symmetric. Such increased spending may, in some situations, increase (rather than decrease) the chance of a false conviction. In addition, increased prosecutorial spending in the initial trial might, in some situations, result in an increase in total litigation costs and an increase in the defendant's litigation costs. Asymmetric appeal rights then have effects that might both increase and decrease trial errors and litigation costs. Thus, it is difficult to say, in the abstract, that asymmetric appeal rights unambiguously reduce false convictions or the defendant's litigation costs. Furthermore, there are reasons for thinking that the effects are likely to be quite small in any event. In light of this, we need to focus on other justifications for asymmetric appeal rights, such as constraining self-interested prosecutors or constraining politically motivated or targeted prosecutions and their costs, before concluding that asymmetric appeal rights help, or how they might help, defendants.

315: PDF