Not proven

Not proven is a verdict available to a court in Scotland. As with other judicial systems, the burden to prove guilt rests with the prosecution.

Under Scots law, a criminal trial may end in one of three verdicts: one of conviction ("guilty") and two of acquittal ("not proven" and "not guilty").

Historically, the two verdicts available to Scots juries were that the case had been "proven" or "not proven". However in a dramatic case in 1728 the jury asserted "its ancient right" to bring in a "not guilty" verdict even when the facts of the case were proven (see jury nullification). As the "not guilty" verdict gained wide acceptance amongst Scots juries, Scots began to use "not guilty" in cases where the jury felt the "not proven" verdict did not adequately express the innocence of the person on trial. Shrewd defence then further encouraged this interpretation in order to persuade juries unwilling to bring in a "not guilty" verdict that the "not proven" could be brought in as a lesser or "third verdict".

The result is the modern perception that the "not proven" verdict is an acquittal used when the judge or jury does not have enough evidence to convict but is not sufficiently convinced of the accused person's innocence to bring in a "not guilty" verdict. Essentially, the judge or jury is unconvinced that the suspect is innocent, but has insufficient evidence to the contrary. In popular parlance, this verdict is sometimes jokingly referred to as "not guilty and don't do it again".

Out of the country, the "not proven" verdict may be referred to as the Scottish verdict, and in Scotland itself it may be referred to colloquially as the bastard verdict, which was a term coined by Sir Walter Scott, who was sheriff in the court of Selkirk.

In Scottish criminal courts, the person on trial is referred to as the accused. If the accused is convicted, he or she is thereafter referred to as the convicted.

History

The three verdict system was established in Scots law by 1728 (since then juries have been able to pass a not guilty verdict). For some time before this, there were just two verdicts: Proven and Not proven; scholars dispute the origins of this system.

On one account, advanced two hundred years ago by the historians Hume and Arnot, the older distinctively Scottish two verdict system was rooted in religious oppression. The Crown persecuted the Covenanters but popular support made it impossible to convict them in a jury trial. To pare the power of the jury, the Scottish judges began restricting the jury's role: no longer would the jury announce whether the accused was "guilty" or "not guilty"; instead it would decide whether specific factual allegations were "proven" or "not proven"; and the judge would then decide whether to convict. Some historians, however, such as Ian Douglas Willock, have rejected the traditional account.

Not guilty

In a notable trial in 1728, a defence lawyer (Robert Dundas) persuaded a jury to reassert its ancient right of acquitting, of finding an accused "not guilty", in spite of the facts being proven. The case involved Carnegie of Finhaven who had accidentally killed the Earl of Strathmore. The law (as it stood) required the jury merely to look at the facts and pass a verdict of "proven" or "not proven" depending on whether they believed the facts proved the accused had killed the Earl. As Carnegie had undoubtedly killed the Earl, if the jury brought in a "proven" they would in effect cause this innocent man to hang. To avert this injustice, the jury decided to assert what it believed to be their "ancient right" to judge the whole case and not just the facts, and brought in the verdict of "not guilty".

The (re)introduction of the "not guilty" verdict was part of a wider movement during the 17th and 18th century which saw a gradual increase in the power of juries, such as the trial of William Penn in 1670, in which an English jury first gained the right to pass a verdict contrary to the law (known as jury nullification), and the trial of John Peter Zenger in New York in 1735 in which jury nullification is credited with establishing freedom of the press as firm right in what would become the United States.

Although jurors continued to use both "not guilty and "not proven", jurors tended to favour the "not guilty" verdict over the "not proven" and the interpretation changed.

Modern usage

In Scotland, a criminal case may be decided either "in solemn procedure" by a jury (instructed by the judge), or "in summary procedure" by the judge alone (with no jury appointed). There are various rules for when the one or the other procedure may or must be employed; in general, juries are employed for the more severe accusations, while petty crimes and offences are treated summarily. A criminal case jury consists of 15 jurors, and make their decision by a simple majority vote: eight votes are necessary and sufficient for the verdict "guilty", which has replaced the older verdict "proven".

Approximately one third of all acquittal verdicts by Scottish juries use the formulation Not proven; the others use Not guilty. The verdict "Not proven" also is available for judges in the summary procedure, and is employed in about a fifth of the "summary" acquittals. The proportion of Not proven acquittals in general is higher in the more severe cases; but so then are the proportion of acquittals versus convictions. This might have many different reasons, e.g., that in average it might be factually more complicated to establish guilt beyond a reasonable doubt in the more severe cases.

Both in the "solemn" and the "summary" acquittals, not proven is interpreted as indicating that the jury or judge, respectively, is not convinced of the innocence of the accused; in fact, they may be morally convinced that the accused is guilty, but do not find the proofs sufficient for a conviction. One reason for this is the rule that in such cases the evidence for the prosecution must be corroborated in order to permit a conviction. Thus, there might be a single plaintiff or witness for the prosecution, which the jury or judge believes is both truthful and trustworthy, but no other witness or circumstances against the accused. By Scottish law, the accused then should be acquitted, but often will be so by the verdict "not proven".

Controversy

In recent years there have been repeated calls for reform, most arguing for a move to only two verdicts. However there are several issues and no consensus. Some of the arguments against the third verdict are

• Many favour the "proven" verdict as it directs the jury to look at the evidence and to err on the side of the accused if there is any doubt.
• Because the "not proven" verdict carries with it an implication of guilt but no formal conviction, the accused is often seen as morally guilty without the option of a retrial to clear their name.
• Many Scottish jurors (through TV etc.) are more familiar with the English/US verdicts of "guilty"/"not guilty" than "proven"/"not guilty"/"not proven".

However, the perceived advantages in retaining the three verdict system have outweighed the disadvantages. Many people believe that if only "guilty" and "not guilty" were available, then some people who are currently acquitted by a "not proven" verdict would instead be convicted. In cases where the public found the evidence of guilt overwhelming, but the jury returned the verdict "not proven", critics have argued that the jury probably would have given a guilty verdict if they did not have the third alternative. Proponents of retaining the third option argue that people acquitted with a "not proven" were not found guilty beyond a reasonable doubt; but with the removal of the third option, they might have been found guilty anyway. This would mean that the presumption of innocence until sufficient proof of guilt is established would be weakened.

Another argument for retaining the three verdict system was brought up by Scottish rape crisis centres, who lobbied for this among the members of the Scottish parliament. The number of "not proven" verdicts in sexual assault cases is proportionally large; about three out of ten of these cases end with an acquittal, and a third of these acquittals (a tenth of all verdicts in such cases) are judged "not proven". This is related to the fact that fairly often there is not sufficient corrobating evidence, and the victim's testimony alone does not constitute a legal ground for a conviction. Now, the rape crisis centres argued, if the "not proven" verdict is removed, a smaller number of assaulted women will dare to press for a trial. If either the first trial, or a successful appeal to the High Court, ends in a "not guilty" verdict, the woman may feel stigmatised in the eyes of the public, which often treats the trial as if there were two accused: the alleged attacker and the victim. On the other hand, a "not proven" verdict is not at all considered as damaging for "the credibility, honesty and reliability of women" (footnote 65 in ), since it indicates that the jurors do believe them, even if the total evidence is not sufficient for a conviction.

Unlike in some jurisdictions, prosecutions in Scotland are not pursued on behalf of a victim or the “complainer”. Clearly, there are however common law and statutory crimes where the co-operation of the complainer is necessary in order to verify the nature and circumstances of an offence. Without the requirement for the complainer to press charges, any subsequent prosecution is nevertheless pursued on behalf of the Crown.

Notwithstanding the three possible verdicts, sexual offending against adults and children remain exceptionally difficult to prosecute in Scotland as the complainer’s allegation must be corroborated. While it might be argued that the system is overly weighted towards the accused, wrongful convictions for these offence types are comparatively rare. The former Lord Advocate, Dame Eilish Angiolini has been instrumental during her tenure in driving forward reform in order that the rate of successful prosecutions increased.

Use in other jurisdictions

Since 1989, in the Italian juridical system, there are five different modes of acquittal available. Two of these correspond roughly to the Scottish Not guilty and Not proven, respectively.

In general, the Scottish verdict has not been permanently adopted outside its home country, but it was sometimes used in colonial Canada, especially by some judges in southwestern Ontario . Its most famous use in the United States came when Senator Arlen Specter tried to vote "not proven" on the two articles of impeachment of Bill Clinton (see Lewinsky scandal—his votes were recorded as "not guilty"), and when, at the O.J. Simpson murder case, various reformers, including Fred Goldman, Ron Goldman's father, pushed for a change to "not proven" because of what they felt was an incorrect presumption of innocence on the part of Simpson.

In 2005, a proposal was made in the University of Chicago Law Review to introduce the not proven verdict into the United States.

Analogy to science

The "not proven" verdict has been used in popular writing (as by Carl Sagan) as a metaphor for the operation of the scientific method, in which conclusions are never absolutely certain, but the most that can be said about a theory is what the preponderance of the evidence suggests.

Further reading

• The Scottish criminal jury: A very peculiar institution, Peter Duff, 62 Law & Contemp. Probs. 173 (Spring 1999)
• Bray, Samuel (2005). "Not Proven: Introducing a Third Verdict". University of Chicago Law Review. 72 (4): 1299–1329.
• Hume, David (1819). Commentaries on the Law of Scotland, volume 2 (2nd ed.). Bell and Bradfute.

See also

• Miscarriage of justice
• Presumption of innocence

Cases

• Helen Duncan
• Alfred John Monson
• Madeleine Smith
• Trials involving Silvio Berlusconi
• West Port murders