Amanda Knox and her now ex-boyfriend Raffaele Sollecito were convicted of killing Meredith Kercher, Knox’s roommate, on Nov. 1, 2007 in Perugia, Italy. Their convictions were overturned on appeal and Knox returned to the United States.
If this case had been prosecuted in the U.S., it would have ended there. Our “double jeopardy” provision prohibits the government from appealing an acquittal.
But under the Italian criminal justice system, the prosecution could—and did—appeal Knox’s acquittal. This time, the government won the appeal.As a result, Knox and Sollecito were once again put on trial for murder. And once again they were convicted.
So what is exactly is double jeopardy?
The concept of double jeopardy comes from the 5th Amendment to the Constitution, which states, “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”
Thus, double jeopardy essentially bars individuals from being prosecuted twice for the same crime by the same jurisdiction. (Note that this explanation is a simplification of the principle in action, but is sufficient for purposes of this discussion.)
This protection is triggered when the jury is sworn in or, in a bench trial, the court begins hearing evidence.
However, there are ways around double jeopardy.
For example, if an individual is acquitted by the state for crimes under state law, he or she may still be subject to prosecution for the same acts by federal authorities under federal law. And defendants acquitted of crimes can still be prosecuted for civil offenses, such as civil rights violations.
For example, the four Los Angeles Police Department officers who were charged with assaulting Rodney King in 1991 were acquitted by a jury in the criminal case. But two of them were later convicted in federal court for violating King’s civil rights.
In addition, acquitted defendants aren’t protected from being sued in civil court based on the same actions that formed the basis of the criminal charges. This approach can be especially attractive given that the legal burden of proof in a civil case is easier to meet.
For example, after O.J. Simpson was acquitted of criminal charges, the families of Nicole Brown Simpson and Ronald L. Goldman sued him in civil court—and won a $33.5 million verdict.
The protection against double jeopardy is consistent with a fundamental principle of our criminal justice system: It’s better for a guilty person to go free than for an innocent person to go to jail. Thus, the double jeopardy clause protects individuals from being prosecuted repeatedly for the same offense until they’re finally convicted.
The double jeopardy protection also keeps the process from dragging on for years and years without final resolution, which is in no one’s best interests.
Just look at this timeline illustrating how long the Amanda Knox case has dragged on:
- Nov. 2, 2007: the body of Meredith Kercher is found
- Nov. 6, 2007: Knox is arrested
- Dec. 4, 2009: Knox is convicted for the first time
- Oct. 3, 2011: the appeals court overturns the conviction and acquits Knox
- March 26, 2013: the acquittal is overturned and a new trial is ordered
- Jan. 30, 2014: Knox is convicted for the second time.
If the case had proceeded in the U.S., it would have ended in 2011 when Knox was acquitted by the appeals court.
Knox is appealing the latest conviction and has indicated she’ll refuse to return to Italy voluntarily if the conviction is upheld. (In fact, one argument she may make should she challenge extradition to Italy is that her Italian conviction would violate the double jeopardy protection provided under U.S. law.)
So almost seven years later, this case still hasn’t been resolved once and for all.
But I wonder whether the protection against double jeopardy really serves justice.
For instance, if defendants can use DNA evidence to overturn old convictions, why shouldn’t the government also be able to use the same evidence to overturn old acquittals?
And consider this hypothetical scenario.
In 2000, Sante Kimes, who recently died in prison, and her son Kenneth were convicted in New York City of murdering Irene Silverman despite the fact that Silverman’s body was never found.
But what if the Kimes had been acquitted—and then months later, authorities found Silverman’s body along with DNA and other forensic evidence tying them to her murder?
Despite the discovery of this new, compelling evidence of their guilt, double jeopardy would prevent New York from prosecuting the Kimes again for murder.
How is that justice?
I believe that the interests of justice would be better served if the system permitted retrials of acquittals provided that a very high standard for such retrials was set.
Defendants shouldn’t be prosecuted again simply because some small piece of inconsequential evidence was found, but only when a court has determined that the new evidence is substantial and compelling.
I’m hardly the first person to suggest such an approach. In fact, other countries already use a similar system.
For example, in 2005, Great Britain revised its law to permit the Court of Appeal to quash an acquittal and order a retrial based on “new and compelling” evidence. The change only applies to cases involving serious crimes—and an acquitted person can be retried only once.
Australia has made similar changes to its law.
Changing the protection against double jeopardy in the U.S. would likely be a much more difficult process than in other countries because the protection here is rooted in a Constitutional amendment. In addition, one could expect civil rights and criminal defense groups to vigorously fight such changes.
But I think a serious discussion of the downsides of double jeopardy is at least warranted, especially if you believe the goal of the criminal justice system is to uncover the truth and see that those who commit heinous crimes are duly punished.
Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes comments from readers.