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A Quantitative Look at the Two-Suspect Scenario |
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Brian Netter [View as PDF]
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115 Yale L.J. 1167 (2006)
Two men are placed at the scene of a homicide. Each has an unsavory past and either could be the murderer--or an innocent man. It all depends on whether a witness should be believed, how the evidence is pieced together, and how the prosecutor decides to proceed. Should he try one man and set the other free? If the first prosecution fails, will he then try the second man? Can he try them simultaneously?
It seems disconcerting, at best, that a prosecutor would go after two men for the same crime, knowing full well that at least one was innocent. But this is what happened in Bradshaw v. Stumpf, a case in which a prosecutor sought the death penalty against two men--admittedly accomplices--by arguing inconsistently that each was the primary aggressor who fired the fatal shot. John Stumpf was sentenced to death on a theory of the case that the same prosecutor later attacked in the trial of Stumpf's accomplice. On federal habeas review, Stumpf claimed that this tactic violated his due process right to a reliable trial. The Supreme Court left this issue unresolved when it remanded the case to the Sixth Circuit.
This Comment presents a quantitative thought experiment to evaluate the claim that prosecutorial inconsistency is fundamentally unreliable. It concludes--perhaps counterintuitively--that when a prosecutor is genuinely unable to decide which of two suspects is guilty, bringing both cases to juries is the most reliable approach so long as there are protections against simultaneous convictions. While there may be other reasons to disfavor dual prosecutions, courts should reject claims of unreliability in cases in which the prosecutor has not manipulated the evidence in order to pursue multiple trials. Part I introduces the debate in the lower courts and sets out the controversy. Part II then offers a model that challenges the reliability claim.
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