Most lawyers and moviegoers who saw the movie Double Jeopardy (1999) know that you cannot be convicted for the same murder twice in the United States. But can you be convicted long after you were acquitted? If you are in Sweden, the answer would be “yes.”
Resning is the Swedish word for when a previously decided criminal case can be reopened, either at the request of the defendant or by the prosecutor. In short, it means that a previously decided criminal case can be reheard. It is regulated in chapter 58 of the Swedish Procedural Code (Rättegångsbalken [RB] SFS 1942:740).
Typically, once a matter has been adjudicated in court with a guilty or innocent verdict it must be appealed within a set time frame. If not, the case is forever settled (30 ch. 9 § RB), meaning, the case becomes legally binding (vinner laga kraft). This is often referred to as the firmness principle (“orubblighetsprincipen”) in Swedish law, meaning that the decision is firm and can be relied upon.
But because it would be unconscionable, especially for the most heinous crimes such as murder, to have guilty persons go free and innocent people stay convicted, there is a rule in Swedish law (resningsparagraf) that provides for when a case can be reheard. This, the principle that incorrect verdicts can (and should) be corrected, is referred to as the truth principle (“sanningsprincipen”).
In an effort to balance these two principles, 58 ch. 2 § RB provides when a criminal case can be reheard to benefit a convicted person, and 58 ch. 3 § RB provides when a case can be reheard to the detriment of a defendant. For a defendant who has been convicted to be successful in reopening his or her case, a member of the court must have been incompetent to hear the case either because of a criminal case or bias, if the evidence presented has later been proven false, or if new evidence not presented in the original trial has been discovered. (58 ch. 2 § RB.) For a prosecutor to be successful in reopening a case against an acquitted defendant, the following conditions must apply: the crime is subject to imprisonment for one year or more and new evidence that has not previously been presented is invoked, provided it is likely that the new evidence would have caused the defendant to be found guilty. All applications to rehear a case are made to the Swedish Supreme Court.
The Supreme Court, in reviewing an application to reopen a case by a prosecutor, must evaluate four things:
- Has the request been made at the right time, meaning within one year after the new evidence was discovered?
- Has the crime been subject to the statute of limitations?
- Is the evidence new and is there a valid excuse for why it was not used by the prosecutor in the original trial?
- Is it likely that the new evidence would have resulted in a conviction?
Rehearing of cases to the detriment of a defendant is relatively rare in Sweden, but earlier this year, the Supreme Court allowed the reopening of a 26-year-old case where a man was acquitted by an appeals court in 1998 after having been convicted by the local court, granting the application for a new trial by the national prosecutor.
Often these cases involve DNA or other evidence that could not be analyzed at the time of the crime but because of technological advances paint a different picture today.
Such is the case with the case that the Supreme Court reopened, the “Malin case”, named after the 16-year-old girl who was found murdered and sexually molested in the woods six months after her disappearance. The police located a sperm stain on her jeans, which at the time could not be used to build a sufficient DNA profile of a suspect. Today, as technology has advanced, even this smaller stain could be used to create a full DNA profile, which the police did.
The police then asked the main suspect to volunteer his DNA for testing, which he refused. The National Prosecutor, therefore, petitioned the Supreme Court to compel a DNA test, but the Supreme Court ruled that a DNA test cannot be compelled to rehear a case. (”Salivprovet” NJA 2021 s. 368.) The Supreme Court held that the Swedish Constitution (2kap 6 § Regeringsformen [RF](SFS 1974:152)) protects against physical violations (kroppsliga ingrepp), and that a DNA test can only be compelled when there is clear statutory support. It also noted that 28 ch. 12 § and 12b § Rättegångsbalken [RB] did not explicitly include re-opening a case as a ground for compelling a DNA test. (”Salivprovet” NJA 2021 s. 368 ¶41.)
In a stroke of prosecutorial luck, the police found an old blood sample and hair strains that had been previously collected from the suspect and that should have been discarded years ago but wasn’t, and used it to test and confirm that the suspect’s DNA and the sperm found on the victim matched.
Empowered with the new evidence, the National Prosecutor asked the Supreme Court to re-open the case. In its decision to let the case be reheard, the Supreme Court agreed that yes, the hair and blood samples should likely have been discarded (even though there was no set rule on the timing of discarding evidence at the time of collection), but held that Sweden uses the principle of free evaluation of evidence (principen om fribevisvärdering) and that it is, therefore, the role of the Appeals Court to evaluate the evidence. (Ö 4141-21 ¶ 42.) The principle of free evaluation of evidence means that there are no set rules for when evidence cannot be brought before a court under Swedish law, including no fruit of the poisonous tree doctrine.
Thus, the Supreme Court granted the request to rehear the case and decided to put the suspect in custody, arguing that “the new evidence does not answer whether and how and when [the victim] was killed. However, it results in several of the circumstances and evidence invoked in the Appeals Court to have a [greater] significance.”
The Appeals Court for Southern Norrland (Hovrätten för Nedre Norrland) reheard the case and, on July 19, 2022, issued their new verdict, convicting the now 44-year-old man, who was the original suspect, for the murder and sentencing him to five years imprisonment. The a sentence took into account that the perpetrator was young at the time of the murder and that a long time has elapsed between the murder and the new trial. (Mål: B 852-22, on file with author.) He had originally been convicted to eight years imprisonment by the district court in the original first trial, which was reversed on appeal. Since then, Swedish sentencing standards have changed and lifetime sentences are now the rule for convicted murders.
As evidenced from the case, as technological advances are made, the role of DNA in solving cold cases in Sweden has grown greater. In 2020, a 16-year-old cold case was solved using DNA from a genealogy site, whereas the investigation into the murder of Prime Minister Olof Palme is still plagued by the lack of DNA evidence.
Feel like you heard of similar cases? It bears some resemblance to a case in Florida, where a man
was also first convicted, then acquitted, for murder due to unreliable DNA technology in the late 1990s.
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