….nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself….
Today most Americans nominally familiar with the law accept as a settled matter that the above two provisions from the Fifth Amendment of the Constitution are some of the essential linchpins in the machinery of American justice. But many citizens more familiar with the legal system and specifically with criminal law, or even those who more closely follow sensational public trials like those of O.J. Simpson and Casey Anthony, have come to question the wisdom of permitting only one prosecution of an accused party or of allowing the accused to remain silent during a trial intended to be a discovery of the truth.
Undoubtedly state prosecutions at times, particularly in high-visibility cases, are driven more by politics than by any evidence beyond a reasonable doubt. And criminal trials cost the state and often the accused many thousands or tens of thousands of dollars.
But the virtue of sparing those few citizens who were in the wrong place at the wrong time the anxiety and the expense of a second criminal defense must be weighed against the immorality inherent in denying a victim full justice and in failing to protect the community from an active criminal offender. Prohibiting a second prosecution against a previously accused person, even when compelling new evidence establishes probable cause or guilt beyond a reasonable doubt, surely places a check against rogue prosecutors well ahead of the securing of truth, public safety and victim justice.
Furthermore, if the criminal legal system were altered, such that state prosecutors were no more — where only the evidence itself, as gathered by law enforcement and as reviewed by a trial judge, could determine whether or not the accused would ever stand trial — once, twice, or ten times — then the case against double jeopardy would fall apart.
So who would play the role of the prosecutor at trial?
We the People would. We as jurors would, under the direction and with the assistance of the presiding judge, conduct an examination not only of the accused but of the victim and/or of the witnesses to the crime, of the witnesses for the defense, of the public officials involved in the criminal investigation, and of any witnesses who stepped forward in the name of truth.
Then, rather than being an adversarial system with competing and contradictory theories of the case, our criminal justice system would become a more impartial, apolitical, interactive machine of justice.
But there it does not end. For how do we, as active jurors, get to the truth of the matter when the accused presents no defense or offers no testimony?
First, under this system the evidence must already be sufficient, as evaluated by a criminal trial judge, to establish probable cause for arrest and trial. The principle, therefore, of affording the accused a presumption of innocence seems deluded. He would not be put on trial if a judge — and not even the presiding judge — had not previously found his innocence in significant doubt.
Second, the accused would have no defense counsel to speak for him — unless he were ruled incompetent by the judge prior to trial. No alternative theory of events could then be presented except by the defendant himself. Should the accused refuse not only to testify but refuse, even with the aid of the court, to present any defense at all, then the jury would include this in their deliberations, while determining his guilt or his innocence.
The accused could not be forced to testify; but his silence ought to be interpreted as one sign among all available evidence of his guilt in the case. Whether jurors take it as such would be entirely up to them. But to ask them to suspend their judgment here is to ask them to assume that a competent, honest man would sit silently under examination by his fellow citizens, refusing to aid in a search for the truth in the wake of a crime, for fear that the evidence trail might lead mistakenly back to him.
An innocent man need only recall the truth. Finally, the adversarial system and its competing theories from the prosecution and the defense councils would no longer deter us from a finding of facts and of the truth. And the jury, who often perform this function today, would still decide the verdict, only now only a simple verdict of “innocent” or “guilty.” The presiding judge would retain the discretion afforded by law to determine the class and the degree of the crime, as well as the sentence imposed.
Such a reformed legal system would not only aid in the search for truth, by including our voices in the examination of facts and witnesses; but it would cost the state and the accused far less to do so. No longer would ours be a system tilted toward a defense of the guilty, as a fail-safe against the potential abuses of the prosecution. It would finally be a criminal justice system tilted toward the victims, toward the innocent, and toward the truth.