Vikramaditya S. Khanna

Boston University School of Law Working Paper 00-05


Double Jeopardy has a long history in Anglo-American jurisprudence, but there has been little analysis of it from an economic 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 generally appeal convictions, but the prosecution has highly attenuated rights to appeal acquittals. Many other countries have more symmetrical rights of appeal.

On first blush this rule seems like it must unambiguously benefit 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.

In particular, my analysis suggests that 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 defendantís 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 result in a reduction in false convictions or in the defendantís litigation costs.

My analysis also discusses some other potential effects of asymmetric appeal rights including their effects on the development of the law, the timing of when issues are resolved, prosecutorial or police abuse of defendantsí other constitutional rights, and the creation, maintenance, and use of multiple offenses against one defendant. On all these fronts asymmetric appeal rights may have socially undesirable effects.

Overall, my analysis shows that asymmetric appeal rights have complex effects that may not be particularly large and that are highly context dependent. Thus, concerns with false convictions and the defendantís litigation costs may not provide very complete justifications for asymmetric appeal rights. We may then need to focus on other justifications, such as constraining politically motivated prosecutions and their costs. Thus, greater study is necessary before concluding that asymmetric appeal rights are desirable and whether they actually help, or how they might help, defendants.

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Vikramaditya S. Khanna Contact Information (email address for Vikramaditya S. Khanna)
who is now at The University of Michigan Law School.

University of Michigan at Ann Arbor - Law School
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Ann Arbor, Michigan 48109-1215
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