I came across a murder case where the person was acquitted and evidence came out after the trial that she was guilty but she wasn't retried because of double jeopardy. The justice system is supposed to be very careful in its judgements and make sure the decisions are backed by facts and evidence. By that nature, it is logical to conclude that there will definitely be cases where new evidence will appear that change everything in a trial. Anybody would find it incredibly stupid if someone is found innocent on a murder case where a video of the crime came out after the trial.

I read this thread about a similar question, but I find it a bit hard to justify this kind of flaw just for the sake of "termination". It's also mentioned that countries like UK and Australia are actually allowing to re-open cases in these instances. Why do other countries, like America, not allow this? Quoting Dale: "As a constitutional protection, legislative change like this is not available in the United States." Is that really true and can someone expand on this? If it is, this is a big problem in my opinion.

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    It's right there in the Fifth Amendment: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." Courts interpreting the Constitution have created practically no exceptions. So I'm not really sure what is unclear or what you are asking about. Whether this provision is a good idea or a "big problem" is a political question and off topic for this site. Jun 14, 2021 at 14:20
  • I think to some extent this comes under the "legal history" provision, and is thus on-topic, althogh "why is the law as it is" is usually off-topic here. Jun 14, 2021 at 14:43
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    The answer by user6726 on the other question includes a historical defense of the law. But I think it simply boils down to the fact that the framers of the Constitution, and courts since then, just don't share your opinion that it is a "flaw". They have a different opinion than you of the relative importance of protecting the innocent and punishing the guilty. Jun 14, 2021 at 15:00
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    One thing to consider: who decides whether evidence is "conclusive"? Should the accused get to make an argument that it is not conclusive? That sounds like a trial in and of itself... Jun 14, 2021 at 15:00
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    The founding fathers were big supporters of Blackstone's Ratio Jun 14, 2021 at 22:32

4 Answers 4


Why do other countries, like America, not allow this?

It is the way that U.S. courts have interpreted the constitutional amendment requirement and reflects a policy judgment that letting someone go free now and then is better than frequently forcing someone to be tried more than once. That value judgment flowed from concerns about and fear and skepticism of the British colonial criminal justice system and the Star Chamber in England with which they were familiar.

The U.K., Australia, Canada, and New Zealand didn't have an independence revolution in their history to create the same kind of deep distrust of authority, especially in the criminal justice area. The U.S. was founded by terrorists. Few other former British colonies were.

Quoting Dale: "As a constitutional protection, legislative change like this is not available in the United States." Is that really true and can someone expand on this?

When the courts determine that the constitution requires something it can't be changed with ordinary legislation. Either the constitution needs to be amended to change it (which is very hard), or the courts can change their interpretation (which is unlikely in an area so settled in the law and which is relatively uncontroversial between liberals and conservatives in the U.S.).

If it is, this is a big problem in my opinion.

The powers that be in the U.S. don't agree. This kind of case is exceedingly rare. And, there are much bigger problems with the system that obscure that one. Also, the dual sovereignty doctrine allows federal prosecutions in some wrongful acquittals that really matter (e.g. for civil rights violations by law enforcement).

  • It is in fact possible for Congress to tell the courts they're wrong; but it rarely sticks because it's almost always used for evil. It was not used early in history in the few cases where it would have been pivotal; e.g. the supreme court early on ruling against enforcing provisions of the fourteenth amendment.
    – Joshua
    Jun 15, 2021 at 0:07
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    @Joshua Under modern American jurisprudence, an act of Congress cannot overrule a contrary court precedent regarding interpretation of the U.S. Constitution, as amended.
    – ohwilleke
    Jun 15, 2021 at 0:21
  • @ohwelleke: On the other hand the courts said no you can't remove the Cherokee. The Trail of Tears happened anyway.
    – Joshua
    Jun 15, 2021 at 0:22
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    @Joshua People break the law every day. This is why there are millions of people under correctional supervision in the United States. This is why there are corruption prosecutions and impeachment proceedings and war crimes tribunals. Sometimes, people who break the law are lucky enough or powerful enough to avoid the consequences. The fact that a President defied a court order and got away with it doesn't mean that Congress has the authority to override a court interpretation of the U.S. Constitution. It merely means that sometimes the law of broken.
    – ohwilleke
    Jun 15, 2021 at 20:31
  • Or did the judges break the law when they assumed the power?
    – Joshua
    Jun 16, 2021 at 20:13

As far as the US is concerned, the provision of the US constitution ends the discussion, unless there is some latent and unresolved unclarity what the 5th Amendment says. Bear in mind that the amendment refers to "jeopardy" and not just "punishment" or "conviction" – even the possibility of conviction. To overcome the US Constitution, it must be amended via a difficult process. Simply allowing the government to repeatedly pursue a prosecution until a conviction is secured would probably be politically unacceptable, and would severely undermine the premise that the justice system is neutral in terms of the interests of the government versus the individual. The related alternative, that no trial finding is ever definitive, would be worse.

Any amendment to the Constitution that would have the desired effect would need to be limited to just those cases where the purported evidence is irrefutable. This is determined by the "finder of fact",the jury in criminal cases. In order to proceed with a second trial, you would have to first allow a system of fact-finding for distinguishing between "questionable" versus "irrefutable" proof. One could study how this is dealt with in NSW, and perhaps guide the re-writing of the Constitution with those insights. For example, such evidence must be fresh and compelling, which means in part that the evidence cannot have even been included in a brief of evidence by the prosecution, regardless of having been admitted or presented to the jury. Perhaps a panel of 6 prosecutors and 6 defense layers could rule on the question of being "compelling", but again, this is primarily a political question about why we don't do that.

  • Still, one could argue that cases where the government repeatedly pursue someone are rarer and/or less important than letting murderers go unpunished. Also, there has to be a way to prevent both these things in the same law or with multiple laws.
    – Simon
    Jun 14, 2021 at 16:29
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    @Simon: There doesn't "have to be"; though there certainly can be. The US has decided (at the fundamental i.e. Constitutional level) that the risk of governmental abuse of power is the greater evil, beyond the risk of compromise. Note also, there is a variety of reasons for prosecution, of which punishment is only one (others include reforming of the criminal and preventing additional crimes) which may or may not be served by multiple prosecutions. This also behooves the prosecution to wait until they have solid evidence to proceed, rather than gambling with a circumstantial case.
    – sharur
    Jun 14, 2021 at 17:48
  • @Simon "it's really, really, really important" is not enough for anyone who wishes to pursue it. The limits of the government's power are outlined in the Constitution. Should the government pursue tasks which it has not legal power to pursue, it would be acting outside of the law. It would be vigilantism.
    – grovkin
    Jun 14, 2021 at 23:47

There's a saying hard cases make bad law:

Hard cases make bad law is an adage or legal maxim. The phrase means that an extreme case is a poor basis for a general law that would cover a wider range of less extreme cases. In other words, a general law is better drafted for the average circumstance as this will be more common.

Maybe you can find a case where not being allowed to retry someone seems like a grave miscarriage of justice: the crime was heinous, the evidence is clearly conclusive, etc., but can you base the law on that case? Do you want to pass a law that says with serious enough crimes, and clear enough evidence, a person can be retried? Then "what's serious enough" and "what's clear enough" become questions at dispute.

Who gets to decide what's a serious enough crime and clear enough evidence? A judge? Then the government (a judge is a government agent) is being allowed to ignore the constitution at its own discretion.

A jury? Isn't a legal process in which a jury is asked to decide how strong the evidence is pretty much what a trial is? So if we allow a jury to decide whether there's enough evidence to justify ignore double jeopardy, then we're pretty much already allowing a second trial. Even if the jury finds for the accused, the accused has been forced to endure another trial, and probably has spent considerable money on legal fees. And the government could do this over and over again.

This would also reduce the incentive for the government to get it right the first time, and in face could create a perverse incentive to not bother collecting all the evidence they can, so that they can later collect more and say "Well, we have more evidence now, so we should have another trial."

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    Well technically, absolute laws shouldn't have any exceptions, but it doesn't really work like that in practice. There's exceptions and specifics everywhere in the laws and in this case it's a very natural outcome to expect, even if it might not happen "often". I think yes the question of "what's serious enough" and "what's clear enough" should be disputed, as any questions regarding moral in society is somewhat of a line defined somewhere in the middle.
    – Simon
    Jun 14, 2021 at 16:21

Here's another large aspect of the problem: define "conclusive" in this hypothetical situation.

Trials, at least at US criminal law, are by jury by right of the accused. That means all these criminal elements of fact such as "reasonableness" etc. are determined by peers, not judges.

There is no such thing as "conclusive" fact in criminal law unless a jury decides so. And so you'll need another trial to determine that in the first place (absent any judicial shortcuts for initial showing).

Double jeopardy was created to prevent one type of abuse: putting the same person on trial over and over again on the same charge, even though their peers have determined not to convict the first time.

All you have to do is continually submit these "conclusive" pieces of evidence piecemeal, not actually trying to convict, but simply maximizing the number of trials (and pre-trial detention, etc) you get to subject the accused to. This amounts to using the criminal system as state-powered super-harassment.

And so the framers decided to let the state get one shot at proving their charges. In return, they accept that some guilty people whose evidence comes up after trial walk free.

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