Detecting Error, Learning from Our Mistakes, and the Appellate Asymmetry

Abstract

This paper investigates the epistemic obstacles posed by a legal system that prevents reversal of acquittals. Because such prevention disincentivizes appeals of non-guilty verdicts by prosecutors, false acquittals are virtually impossible to identify. Apart from entailing that such errors cannot be corrected (since they are not detected), this policy has a more egregious consequence; to wit, that appellate courts have little or no opportunity to learn what kinds of flaws lead to false acquittals. Without such knowledge, the courts are in no position to make or to recommend the sorts of changes that would otherwise allow the system to reform itself by learning from its mistakes. Finally, the appellate asymmetry arguably creates a situation in which rulings from lower court judges are much more likely to favor the defendant than the prosecution. All these problems could be resolved if double jeopardy protection were seriously rethought.