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Bargaining with Double Jeopardy

  • Saul Levmore
  • Ariel Porat
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    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.

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    File URL: http://www.jstor.org/stable/pdfplus/10.1086/660840
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    File URL: http://www.jstor.org/stable/full/10.1086/660840
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    Article provided by University of Chicago Press in its journal The Journal of Legal Studies.

    Volume (Year): 40 (2011)
    Issue (Month): 2 ()
    Pages: 273 - 293

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    Handle: RePEc:ucp:jlstud:doi:10.1086/660840
    Contact details of provider: Web page: http://www.journals.uchicago.edu/JLS/

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