Bargaining with double jeopardy

Saul Levmore*, Ariel Porat

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

3 Scopus citations


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-over invest in preparation. Somewhat similarly, though far a field, 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.

Original languageEnglish
Pages (from-to)273-293
Number of pages21
JournalJournal of Legal Studies
Issue number2
StatePublished - 2011


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