I do some criminal defense, so my answer naturally tends toward 'no' - but I'm trying to explore both sides here. In a criminal prosecution where the defendant has been found not guilty but the trial court has committed reversible error (letting in inadmissible evidence, keeping out admissible evidence, etc.), should the prosecutor have the right to appeal and, if the case is reversed, have a new trial?

The argument in favour would be that it's only fair that if the defendant should have the right to a trial free from error, then we the people should have the right also. Certainly the state has the right to a fair trial - that's why the state is allowed to object to evidence, etc. As it is now, a trial court judge who is bent in favour of the defense could simply make bad ruling after bad ruling and nothing happens to him (maybe he wouldn't be re-elected/re-appointed/retained, but that's always a big maybe). Even the clearest legal errors are not subject to review by a higher court.

There is the double jeopardy argument, but a counter argument would be that courts carve out exceptions to double jeopardy all the time. Mistrial being an example. If a mistrial is declared, for any reason other than prosecutorial misconduct, then the defendant can be retried. If the errors are so severe that an appellate court would reverse on prosecutor's appeal, then why not just say that the case was mis-tried? No double jeopardy there.

Of course, the argument against is based on the idea that if the prosecutor wins an appeal and gets a new trial, that it will inevitably result in a new jury looking at the same case, and that is exactly what double jeopardy is intended to prevent. (But that happens with hung-jury mistrials too and it's not double jeopardy)

Thoughts?

(Oh and before anyone brings it up - yes I know there are many instances in which a prosecutor can appeal a motion ruling, also known as "running a writ," but I'm talking about appealing the final judgment of acquittal)

[Edited on December 14, 2006 at 5:23 AM. Reason : add]

12/14/2006 4:57:23 AM

I whistled for a cab and when it came near...

12/14/2006 11:28:16 AM

the license plate said fresh and there was dice in the mir'

12/14/2006 5:39:29 PM

Ok, no. The state had its chance, get it right next time because this chance is gone.

12/14/2006 9:09:45 PM