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90 Phil. L.J. 401 (2016-2017)
Guilty by Reasonable Doubt and Counterfactual Innocence: Asymmetrical Appeals in Philippine Double Jeopardy Law

handle is hein.journals/philplj90 and id is 417 raw text is: GUILTY BY REASONABLE DOUBT AND COUNTERFACTUAL INNOCENCE: ASYMMETRIC APPEALS IN PHILIPPINE DOUBLE JEOPARDY LAw* Paolo S. Taiase ABSTRACT This paper proposes a reexamination of the asymmetric appeals regime in the law on double jeopardy in the Philippines on the ground that it is an economically inefficient system. It begins with an exposition of the historical development of the constitutional proscription against a second prosecution for the same offense along with a survey of the legal systems that apply the prohibition. This paper argues that the principle of double jeopardy per se does not require courts to bar prosecutorial appeals. It then proceeds to discuss the development of the principle in Philippine law to show that the asymmetric appeals regime vas adopted froi the United States without examination. After reiterating the normative cases for and against asymmetric appeal rights, the paper presents its main argument: that amidst imperfect information, there is a moral hazard on the part of judges to convict when there is reasonable doubt in order to externalize the cost of rendering an unjust judgment or to preserve difficult issues on appeal. To support this, the paper proposes and examines a social utility function and a utility function of a judge, employing game theory to illustrate the strategic behavior of lower court judges. The paper ends with a discussion of the viability of the proposal and calls for an independent examination of legal principles imported from foreign jurisdictions. Cit as Paolo S. Tamase, Gi/ty by by easonable Do/Ibl aid Coiner/actua/ Innocence: ymmnifC iPea/s in PhI// inii Dolb/e/jeopaniv Laar, 90 Pi iiiL. L.J. 401, (page cited) (2017). J.D., riici /aide, and valedictorian, University of the Philippincs (2016); B.S. Business Elconomiics, nrgua cam beaidr, University of the Philippines (2012). Chair, Pil_\\IPPINi L\ j)tWR-it, Vol. 88. I ani indebted to Prof. Dante Gatmaytan, my supervised kgal research adviser, for guiding ic in the research for this paper. I likewise acknowledge Dean Gerard Dulay (Duke Univ. Ph.D. Pol. Econ. Program), Carlhs Tolentino II (C.P. School of EIconoiics M.A. Econ. Program)., Jennifer Castro (Vol. 88), and J rorhn Glenn \Agbavani (Vol. 89), who reviewed and criticized the initial drafts. Notwvithstanding their help and input, any shortcomings in this work are solely mine. 401

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