Sunday, January 1, 2012

If I were in charge

If I were in a position to make the rules for the criminal justice system, things would look a lot different. But have no fear, tough on crime people, I will never be appointed to the appellate court precisely because I would be so "defendant-friendly." Of course, I don't think I am defendant-friendly. I just think I am pro-Bill of Rights, pro-holding the state to its burden, anti-incarceration as the response to every crime, etc.

The first thing I would change might surprise you. The thing that is most sticking in my craw these days is the fact that the prosecution is allowed to take a defendant to a second trial after a hung jury. If I were in charge, this wouldn't happen. If I got to make the rules, a hung jury would result in the defendant being discharged from further prosecution in the same way s/he would be after an acquittal. Because in my world, the prosecution wouldn't get a second chance to make its case.

The prosecution has the burden to prove a defendant's guilt beyond a reasonable doubt. They have to prove it to the requisite number of jurors. (In most places, that's a unanimous 12, but it varies a little.) A hung jury means the state didn't meet that burden. The state failed to convince the necessary number of jurors of the defendant's guilt. Proving it to 6 or 7 or even 11 jurors should not earn the prosecution a second chance. Rather, that should be recognized as the prosecution failing. Because if the prosecution has only convinced 11 (or fewer) jurors, that is exactly what they have done: they have failed.

Instead of recognizing the prosecution's failure, though, courts have instead allowed a hung jury to be viewed as a situation in which jeopardy does not attach for purposes of double jeopardy. So the prosecution is given a second chance. And, if necessary, a third and forth and fifth. There is no set rule for how many failures to convince 12 jurors of the defendant's guilt finally amounts to a violation of the defendant's right against being subjected to double jeopardy.

If I were in charge, though, there would be a set rule. The prosecution would get one chance. One. A hung jury would be recognized as the prosecution failing to make its case and the defendant would be set free. Maybe this sounds radical to some of you, though I fail to understand why. To me, it just seems like the way things ought to be.


Transplanted Lawyer said...

"Now, ladies and gentlemen, let me remind you that the people only get one shot here. As the judge will instruct you, if you are to convict you must do so unanimously. If one of you dissents, because that one of you just can't decide whether to acquit or convict based on the reasonable doubt standard -- a standard to which you should adhere -- then we the prosecution will never get a second chance to convict the defendant of this crime, a crime that the evidence shows it's much more likely than not that he committed. So please be sure to deliberate carefully, ladies and gentlemen, and consider the implications of your choice. A lot rests on you, and the people are counting on you in there."

Probably violates a rule about confusing the standards of proof, but that's a matter for the appellate courts to figure out, after the prosecution has scared the jury into convicting someone despite the presence of evidence raising a reasonable doubt.

S said...

Sigh. I'd like to believe that the court in my state, which has been pretty good on prosecutorial misconduct in recent years, would not tolerate that nonsense. But they'd sure try it.

And what a poor excuse that is for letting prosecutors get a second kick at the cat. Sigh.

DBB said...

To deal with that first comment, just make it illegal for the prosecutor to even mention the "one shot" rule to the jury, just like you can't mention jury nullification. If the prosecutor violates this, instant mistrial, and since jeopardy was already attached, no do-over. Oh, and disbar the prosecutor.

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