Not Proven: Introducing a Third Verdict

Abstract

Verdicts other than guilty and not guilty are exceptional in American criminal law, yet some legal systems routinely use more than two verdicts. In Scotland, judges and juries in criminal trials choose from three verdicts: guilty, not proven, and not guilty. Not proven and not guilty are both acquittals, indistinguishable in legal consequence but different in connotation. Not guilty is for a defendant the jury thinks is innocent; not proven, for a case with insufficient evidence of guilt. One verdict announces "legally innocent" and thus exonerates. The other says "inconclusive evidence" and fails to exonerate or even stigmatizes.

The American verdict of not guilty covers both of these grounds for acquittal. The jury that thinks a defendant is truly innocent has no means of conveying that message. For the jury that considers the charge unproved but does not want to assert factual guilt or innocence, no verdict speaks only to proof. The two-verdict system, or any other verdict system for that matter, limits the jury's speech. Reasons could be given for obscuring the verdict: one might say a two-verdict system maintains the presumption of innocence and prevents social stigma for unproven charges. As shown in this Comment, a two-verdict system secures neither of these advantages. With a high standard of proof, such as beyond a reasonable doubt, the public will know that some defendants are being acquitted because of insufficient evidence, not because of actual innocence. With that knowledge, the public will see the acquittal in a two-verdict system as stigmatizing and tarnishing, and no well-intentioned decree can change that fact. Once this stubborn reality of tarnishing acquittals is recognized, the arguments for a two-verdict system lose their force.

This Comment proposes introducing a verdict patterned after Scotland's not proven. Part I surveys legal systems that have more than one kind of acquittal available to most defendants. Part II proposes a not proven verdict for the United States. Part III analyzes consequences of introducing this verdict, such as more information, more acquittals, and more stigma.

Keywords: verdict, probable guilt, Scottish verdict, Scottish law, information, acquittal, wrongful conviction, exoneration, stigma, comparative law, signaling, lemons

JEL Classification: K14