The third verdict that can bring some justice to victims of crimes

A straightforward and meaningful change

There are only two verdicts in the American court system, and Americans seldom question this. But there are alternatives. In his paper, Not Proven: Introducing a Third Verdict, law professor Samuel Bray argues for implementing a three verdict system modeled after the Scottish system. In this system, in addition to the verdict of guilty that convicts the accused, there are two verdicts that can acquit the accused, not guilty and not proven. Both verdicts have the same legal effect of acquitting the accused, but distinguishing between the two allows for jurors to explain why they voted to acquit and to state definitively whether they think the accused was actually innocent or whether the case simply was not proven.

In 1995, the Scottish parliament debated removing not proven as a possible verdict, but the vote was overwhelmingly in favor of retaining it. One of the main reasons for retaining it was that verdicts of not proven do not stigmatize rape and other sexual assault victims even though the accused is acquitted. As Bray points out in his paper:

Either verdict, guilty or not guilty, appears to exonerate one and to impugn the other. In such a case, especially when jurors think guilt is more likely than not, having a not proven verdict frees the jury to acquit without repudiating the accuser. When the jury convicts, it should do so because the case was proved beyond a reasonable doubt, not because of a desire to avoid rejecting the claim. (1318-1319)

In the parliamentary debate, two members of parliament, Menzies Campbell and Malcolm Chisholm, eloquently defended retaining the verdict. Here is an excerpt from Campbell’s speech:

In the mind of one of my constituents who was the victim of a sexual assault, that verdict has continued to provide a justification for her courage in exposing herself to cross-examination in court. Anyone with any understanding of the position in which a female victim finds herself when she claims that she has been the victim of a sexual assault will appreciate the fact that it is often an act of considerable bravery for that individual to stand in court, give evidence and be subjected to a rigorous and sometimes most unpleasant cross-examination about her sexual history…In the case that I mentioned, my constituent took comfort from the fact that, although her evidence was apparently insufficient on its own to bring home guilt on her assailant, she did not face what she would have regarded as the horror of seeing him offered the unqualified certificate of good character to which a not guilty verdict would have entitled him.

And here is an excerpt from Chisholm’s speech:

The rape crisis centre in Edinburgh and the people it represents feel passionately about this issue. Other women’s organisations in Edinburgh have also raised the issue with me. A verdict of not proven is commonly used in rape trials…If such a verdict is abolished, we shall load the dice even more against women in rape trials, and goodness knows the dice are already heavily loaded against them…If the not proven verdict is taken away and such verdicts in the High Court become not-guilty verdicts, the credibility, honesty and reliability of women will be further called into question. If women know that that verdict is not available, it will not only be a serious problem for victims of rape but women will be discouraged from coming forward with complaints of rape. I therefore cannot express too strongly the fact that rape crisis organisations feel that this is a major issue for them and those they represent.

It is not just in cases of rape where the verdict of not proven would be an improvement; murder cases would greatly benefit from the addition of this third verdict. In the famous George Zimmerman trial, it is common knowledge that the jury found Zimmerman not guilty. Unless one paid close attention to media that interviewed the jurors after the trial, it would be easy to miss the fact that half the jury thought Zimmerman was guilty. At least two of the jurors “wanted to find him guilty of something.” In one story, one of the jurors said, “George Zimmerman got away with murder, but you can’t get away from God.” She continued to say that the reason she changed her vote to not guilty was because ultimately there was not enough evidence to convict him. In yet another story, the same juror said things like “as much as we were trying to find this man guilty” and “in our hearts we felt he was guilty.” Because the American court system only recognizes two verdicts, the jurors ultimately voted not guilty, but clearly this does not reflect the beliefs of at least half the jury. If they had the option of voting not proven, surely the jurors who felt Zimmerman was guilty but that the case against him was not proven would have preferred to show that in their decision. It would have sent a clear signal that they did not believe that Zimmerman was innocent but that they also could not in good conscience say that the case against Zimmerman was proven beyond a reasonable doubt.

While the legal result of both not guilty and not proven is acquittal, there is a clear advantage in distinguishing between the two. In cases of sexual assault, the different connotations of the two verdicts provide a way for the jury to signal when they believe the victim but that the case can not be proven beyond a reasonable doubt, and in other cases they can signal that they believe a defendant is actually innocent. Likewise, in cases of murder the jury can signal when they believe a defendant is innocent as well as when they think he is guilty but it can not be proven beyond a reasonable doubt. With not guilty and not proven grouped together into one verdict, these possibilities are lost and the falsely accused are grouped with those who are factually guilty but can legally get away with their crimes. Instituting not proven as a third verdict would be a meaningful change that would greatly reduce many injustices.

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