A Stitch in Haste

I blogged back in April about how Britain had eliminated the protection against being tried twice for the same crime, known as the double jeopardy rule, in some circumstances. In the United States, the protection against double jeopardy for federal offenses is guaranteed by the Fifth Amendment (and incorporated by the Fourteenth Amendment to apply to the states).

Now comes word that the first retrial under Britain's new "no double jeopardy" rule has arisen:

Julie Hogg disappeared from her home and her body was found by her mother behind a bath panel at her daughter's house 80 days after she went missing.

[Billy] Dunlop faced a jury twice over Hogg's murder but each time they failed to reach a verdict and he was formally acquitted in 1991.

Director of Public Prosecutions Ken Macdonald said he had given consent for the case to be referred to the Court of Appeal under a new law because there was "new and compelling evidence."

One of the harder lessons to learn in jurisprudence is that criminal justice is not exclusively, sometimes not even primarily, about convicting the guilty and exonerating the innocent.

The purpose of a criminal trial is most certainly not to "discover the truth." If it were, then we would have no rules of evidence (e.g., the hearsay rule), no testimonial privilege (e.g., attorney-client privilege), no exclusionary rule for evidence obtained from an unlawful search, no "taking the Fifth" and of course no double jeopardy rule. All these protections have one function: to hide the truth.

Moreover, most of these rules tend to benefit the guilty far more than the innocent.

And yet we cherish these protections as part of the bedrock of our free society. Why is that?

I can think of two reasons. First, it is (unfortunately) often better to be more afraid of government and its abuses than of guilty perpetrators of crimes who are released into society. You can generally fight back against criminal misconduct; it is much harder to fight back against police misconduct.

Second is of course the strong preference in criminal law for false negatives rather than false positives (i.e., wrongfully convicting an innocent defendant is not equivalent to wrongfully acquitting an guilty defendant). The latter is always preferable to the former.

How sad that Britain, where much of our American constitutional legacy originates, seems to be losing sight of these bedrock principles of modern Western justice. And how fortunate we are to have many of those protections enshrined in our Constitution (although that is hardly an absolute guarantee anymore).