Abstract
AbstractScotland, unusually, has three verdicts in criminal trials: guilty, not guilty, and not proven. The not proven verdict, regarded by many as an intermediate option between the other two, has been the subject of a long‐running debate as to whether it should be abolished. In this article we argue that it should. Drawing on empirical evidence from two recent studies, we cast doubt on the arguments most often made in its favour – that it serves a valuable communicative function, protects against wrongful conviction, and/or increases juror satisfaction. There is no consensus on its meaning or appropriate application in any given case, and it risks both stigmatising an acquitted accused and diminishing complainers’ opportunities for closure. It is doubtful that it prevents wrongful conviction, but even if it does, there are more effective measures in this regard.
Highlights
Scotland, unusually, has three verdicts in criminal trials
Drawing on empirical evidence from two recent studies, we cast doubt on the arguments most often made in its favour – that it serves a valuable communicative function, protects against wrongful conviction, and/or increases juror satisfaction
In different ways, link to a further claim sometimes made in favour of the not proven verdict, which is that the availability of this option is valued by jurors
Summary
Scotland has three verdicts in criminal trials. In addition to the options of ‘guilty’ and ‘not guilty’, familiar throughout the common law world, jurors have a third option: ‘not proven’. The second argument is a more general one: that the availability of the verdict means that, in a case where the evidence does not quite meet the standard of proof, jurors will use the not proven verdict where otherwise they might have been tempted (wrongly) to convict Both of these arguments, in different ways, link to a further claim sometimes made in favour of the not proven verdict, which is that the availability of this option is valued by jurors. We supply some of the missing empirical data to enable these arguments to be properly evaluated This comes from two sources – a large-scale and pioneering mock jury deliberation study, which explored in detail how juries operated both with and without this third verdict, and a programme of interviews with complainers whose cases had concluded with a not proven verdict. We briefly examine, but reject, the possibility of retaining the not proven verdict (alongside a verdict of proven) in a binary verdict system
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