Bargaining with Double Jeopardy

Saul Levmore and Ariel Porat

The Journal of Legal Studies, 2011, vol. 40, issue 2, 273 - 293

Abstract: Virtually every burden of proof is influenced by a rule regarding relitigation. In criminal law, the prosecutor is prevented from repeatedly drawing from the urn, as it were, by the double-jeopardy rule, which reinforces the beyond-a-reasonable-doubt standard. We suggest that if law were to permit defendants to waive double-jeopardy protection, private and social benefits might follow. The benefits derive from the likelihood that prosecutors--like most people who can take a test but once--overinvest in preparation. Somewhat similarly, though far afield, deficit spending by a legislature might be linked to the fact that spending proposals that are rebuffed can be retested or revisited. We contemplate offering defendants the option of waiving their double-jeopardy protection in anticipation of reduced prosecutorial investment. Innocent defendants might then be more likely to waive, in which case there will be socially beneficial sorting of defendants.

Date: 2011
References: View references in EconPapers View complete reference list from CitEc
Citations:

Downloads: (external link)
http://dx.doi.org/10.1086/660840 (application/pdf)
http://dx.doi.org/10.1086/660840 (text/html)
Access to the online full text or PDF requires a subscription.

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:ucp:jlstud:doi:10.1086/660840

Access Statistics for this article

More articles in The Journal of Legal Studies from University of Chicago Press
Bibliographic data for series maintained by Journals Division ().