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Adjudication Error, Finality, and Asymmetry in the Criminal Law

Published online by Cambridge University Press:  20 July 2015

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All forms of criminal charge adjudication produce errors of mistaken conviction or acquittal. Yet in most criminal justice systems, an endpoint of sorts is eventually reached and further attempts to correct errors are disallowed. The first issue discussed is whether such “finality” in charge adjudication should be presumptive or non-presumptive. My contention is that it should be presumptive. But should it be presumptive only for convictions or also for acquittals? As against strong forms of asymmetry, I urge weaker forms, according to which we should seek to correct both kinds of errors while exhibiting some degree of preference for correcting errors of wrongful conviction over those of wrongful acquittal. The issues that must be faced if we are to set up procedures allowing rebuttal of the presumption of finality are then surveyed. Doing so reveals the forms that weak asymmetry might take.

Research Article
Copyright © Canadian Journal of Law and Jurisprudence 2013

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An earlier version of this paper was presented to the Criminal Law Discussion Group at the University of Oxford. I am grateful to those present for helpful comments and suggestions. Also, Lucia Zedner offered numerous helpful comments on an earlier draft of the paper, as did an anonymous reviewer for this journal.

1. See, for instance, the list of exonerated defendants compiled by The Innocence Project at (accessed 02/09/12).

2. Most recently the Casey Anthony trial involved such a case. Other cases in recent memory include the O J Simpson murder trial and the trial of the police officers accused of beating Rodney King.

3. Rawls, John, A Theory of Justice (Cambridge: Harvard University Press, 1971) at 85.Google Scholar

4. Plea negotiation is ubiquitous in the United States and in England and Wales. For useful discussions of plea negotiations in other countries, see Ma, Yue, “Prosecutorial Discretion and Plea Bargaining in the United States, France, Germany, and Italy: A Comparative Perspective” (2002) 12 Int’l Crim J Rev 22 Google Scholar and Langer, Maximo, “From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure” (2004) 45 Harv Int’l LJ 1 Google Scholar.

5. For further analysis of the forms of plea bargaining likely to produce errors, see Lippke, Richard L, The Ethics of Plea Bargaining (Oxford: Oxford University Press, 2011).CrossRefGoogle Scholar

6. See Bowers, Josh, “Punishing the Innocent” (2007) 156 U Pa L Rev 1116 Google Scholar.

7. This is true in Canada. See Alogna, Forrest G, “Double Jeopardy, Acquittal Appeals, and the Law-Fact Distinction” (2000-01) 86 Cornell L Rev 1131 at 1139Google Scholar.

8. On the difficulty in gaining reversals of convictions on appeal in the United States, see Findley, Keith A and Scott, Michael S, “The Multiple Dimensions of Tunnel Vision in Criminal Cases” (2006) Wisc L Rev 291 at 348Google Scholar.

9. This is true in England and Wales. See Ashworth, Andrew and Redmayne, Mike, The Criminal Process, 4th ed (Oxford: Oxford University Press, 2010) at 372.CrossRefGoogle Scholar

10. See Saltzberg, Stephen A, “Pleas of Guilty and the Loss of Constitutional Rights: The Current Price of Pleading Guilty” (1978) 76 Mich L Rev 1265 at 1273CrossRefGoogle Scholar. See also the recent Supreme Court decisions expanding claims of ineffective assistance to plea bargained outcomes, Lafer v Cooper, 132 SCt 1376 (2012)Google Scholar, and Missouri v Frye, 132 S Ct 1399 (2012)Google Scholar.

11. See Lippke, supra note 5 at 60-61.

12. For an influential discussion, see Bator, Paul M, “Finality in Criminal Law and Federal Habeas Corpus for State Prisoners” (1963) 76 Harv L Rev 441 CrossRefGoogle Scholar. Also, see Malleson, Kate, “Appeals Against Conviction and the Principle of Finality” (1994) 21 JL & Society 151 Google Scholar.

13. England and Wales have done quite a bit more than the United States to extend the point at which those either convicted or crimes or acquitted of them reach the point of finality. Recent alterations in double jeopardy provisions expose some serious offenders to further prosecutions. Also, efforts to give individuals convicted of crimes some mechanism for overturning their convictions once all of their appeals are exhausted have been made with the advent of the Criminal Cases Review Commission. For discussion of these developments, see Ashworth and Redmayne, supra note 9 at 389-93 and 397-401. Note, however, that these measures apply only to verdicts reached through trial adjudication.

14. See, among others, Bakken, Tim, “Truth and Innocence Procedures to Free Innocent Persons: Beyond the Adversarial System” (2008) 41 U Mich JL Ref 547 Google Scholar; Thomas, George C III, Young, Gordon G, Sharfman, Keith & Briscoe, Kate B, “Is It Ever Too Late for Innocence? Finality, Efficiency, and Claims of Innocence” (2003) 64 U Pitt L Rev 263 Google Scholar; Risinger, D Michael, “Unsafe Verdicts: The Need for Reformed for the Trial and Review of Factual Innocence Claims” (2004) 41 Hous L Rev 1281 Google Scholar; Luna, Erik, “System Failure” (2005) 42 Am Crim L Rev 1201 Google Scholar; Zacharias, Fred C, “The Role of Prosecutors in Serving Justice After Convictions” (2005) 58 Vand L Rev 171 Google Scholar; and Medwed, Daniel S, “The Prosecutor as Minister of Justice: Preaching to the Unconverted from the Post-Conviction Pulpit” (2009) 84 Wash L Rev 35 Google Scholar.

15. That our concern to correct errors is asymmetrical has been noticed by, among others, Laudan, Larry, Truth, Error, and Criminal Law (Cambridge: Cambridge University Press, 2006) at 3 CrossRefGoogle Scholar and Roberts, Paul, “Double Jeopardy Reform: A Criminal Justice Commentary” (2002) 65 Mod L Rev 393 at 397CrossRefGoogle Scholar.

16. Crucially, in speaking of the “initial charge adjudication process” in the context of a trial, I am assuming that the appeals process generally does not involve the introduction of new evidence suggesting that a convicted defendant is innocent. Instead, appellate review focuses on whether the trial was fair or the evidence offered at it sufficient to meet the standard of proof. In some countries, there are opportunities for defendants convicted at trials to introduce new evidence of their innocence during the appeals process. This complicates things for the purposes of my analysis, though it does not alter them in any essential way. At some point, most appellate reviews are exhausted. The question is whether, once they are, the outcomes should be treated as presumptively or non-presumptively final.

17. To simplify things, I ignore cases of partial guilt, that is, cases in which defendants who are guilty of some of the crimes with which they have been charged either plead or are found guilty of all of them (or of more crimes than those of which they are actually guilty). My arguments against the value of finality will apply to the charges of which they are factually innocent.

18. See Lippke, supra note 5.

19. See Feeley, Malcolm M, The Process Is the Punishment: Handling Cases in a Lower Criminal Court (New York: Russell Sage Foundation, 1979)Google Scholar and Bowers, supra note 6 at 1132.

20. There might be a few cases in which the factually innocent will go onto commit crimes, and perhaps quite serious ones. These might be prevented by their unjust incarceration. There is also the slight contribution to general deterrence that might be made by punishment of the innocent, though this is a benefit that is surely swamped by the costs and burdens of their punishment.

21. For useful discussion of the “repose” argument, see Westen, Peter & Drubel, Richard, “Toward a General Theory of Double Jeopardy” (1978) 1978 Sup Ct Rev 81 at 85-97Google Scholar and Westen, Peter, “The Three Faces of Double Jeopardy” (1980) 78 Mich L Rev 1001 at 1005CrossRefGoogle Scholar.

22. On the former point, see Green v United States, 355 US 184 (1957)Google Scholar. On the latter point, see Burks v United States, 437 US 1 at 11 (1978)Google ScholarPubMed.

23. For evidence and discussion of what victims want from the legal punishment of those who have offended against them, see Orth, Uli, “Punishment Goals of Crime Victims” (2003) 27 Law & Human Behavior 173 CrossRefGoogle ScholarPubMed.

24. See Medwed, Daniel S, “The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence” (2004) 84 BU L Rev 125 Google Scholar.

25. See Stuntz, William J, “Plea Bargaining and the Criminal Law’s Disappearing Shadow” (2004) 117 Harv L Rev 2548 at 2563CrossRefGoogle Scholar.

26. See Thomas, et al supra note 14 at 274, where they note and discuss the costs of permitting the convicted who have exhausted their appeals to continue to contest their convictions.

27. The recent modifications in British double jeopardy doctrine arguably make it difficult for the government to quash acquittals. For useful overviews of the debate leading up to the changes, see The Criminal Justice Bill: Double Jeopardy and Prosecution Appeals, House of Commons Research Paper 02/74, December 2, 2002, and Double Jeopardy: A Summary, The Law Commission Consultation Paper No 156, March 2001. For contrasting analyses of the changes, see Dennis, Ian, “Prosecution Appeals and Retrials for Serious Offenses” (2004) 2004 Crim L Rev 619 Google Scholar and Roberts, supra note 15.

28. In the plea bargaining literature, such agreements are commonly described as ones in which state officials secure “half a loaf” in the sense that they gain guilty pleas to reduced charges rather than risking acquittals at trial. See, for instance, Alschuler, Albert, “The Prosecutor’s Role in Plea Bargaining” (1968) 36 U Chi L Rev 50 at 60CrossRefGoogle Scholar.

29. Blackstone, William, Commentaries on the Laws of England (Boston: Beacon Press, 1962) at 358.Google Scholar For amusing evidence that there is little agreement on the ratio of guilty persons who should go unpunished to innocent persons punished, see Volokh, Alexander, “ n Guilty Men” (1997) 146 U Pa L Rev 173 CrossRefGoogle Scholar.

30. See Lippke, Richard L, “Punishing the Guilty, Not Punishing the Innocent” (2010) 7 J Moral Phil 462 CrossRefGoogle Scholar.

31. See Haney, Craig, Reforming Punishment: Psychological Limits to the Pains of Imprisonment (Washington, DC: American Psychological Association, 2006)CrossRefGoogle Scholar and Western, Bruce, Punishment and Inequality in America (New York: Russell Sage, 2006).Google Scholar

32. Also, judges in many jurisdictions are permitted, or required, to take past convictions into account when making sentencing decisions for current offenses.

33. Roberts, supra note 15 at 408-09.

34. For critical discussion of the doing versus allowing distinction, see Scheffer, Samuel, The Rejection of Consequentialism (Oxford: Clarendon Press, 1982)Google Scholar and Kagan, Shelly, The Limits of Morality (Oxford: Clarendon Press, 1992).Google Scholar

35. Roberts, supra note 15 at 410.

36. Ibid.

37. Ibid at 411.

38. See the references supra note 27.

39. Indeed, Roberts himself raises important questions regarding the British government proposal, supra note 15 at 415-20.

40. See Ashworth & Redmayne, supra note 9 at 399-400. It should be noted, however, that Ashworth and Redmayne do not completely reject the new British provisions permitting the quashing of acquittals, so much as express concerns about how they will be employed.

41. I am grateful to Lucia Zedner and Malcolm Thorburn for Pressing this objection.

42. Ashworth and Redmayne, supra note 9 at 397. For useful discussion of this evidentiary criterion, see Roberts, supra note 15 at 415-20. Thomas, et al, supra note 13 at 265, suggest that convictions might be re-examined if the evidence of the defendant’s innocence is “powerful and new.” The Double Jeopardy (Scotland) Act of 2011 permits an acquittal to be re-examined if there is new evidence adduced that “strengthens substantially” the case against a defendant, such that the jury at the initial trial would have been “highly likely” to have convicted the defendant. See (accessed December 27, 2012). The Act also permits acquittals to be quashed if defendants subsequently admit their crimes. It is also worth noting that in both legal jurisdictions, acquittals can be quashed if the state can show convincing evidence that the defendant interfered illicitly with the proper conduct of the trial.

43. However, some innocent or partly innocent (in the sense that they are guilty of some but not all of the crimes with which they have been charged) defendants might nonetheless enter guilty pleas in order to avoid the process costs of trials.

44. For useful discussion, see Gazal-Ayal, Oren, “Partial Ban on Plea Bargains” (2006) 27 Cardozo L Rev 2295 Google Scholar.

45. Whether the retroactivity of modified double jeopardy provisions in England and Wales and in various Australian states run afoul of the rule of law is usefully discussed by Hamer, David, “The Expectation of Incorrect Acquittals and the ‘New and Compelling Evidence’ Exception to Double Jeopardy” (2009) 2 Crim L Rev 63 Google Scholar.

46. See, in particular, Risinger, supra note 14 at 1311-13 and Bakken, supra note 14 at 549-50.

47. See Lippke, supra note 5, especially ch 9.

48. See Oldfather, Chad M, “Appellate Courts, Historical Facts, and the Civil-Criminal Distinction” (2004) 57 Vand L Rev 437 Google Scholar.

49. See Westen & Drubel, supra note 21 at 127 and Laudan, supra note 15 at 196.