.
Prof. Larry Laudan
Lecturer in Law and Philosophy
University of Texas at Austin
“‘Not Guilty’: The Misleading Verdict and How It Fails to Serve either Society or the Innocent Defendant”
Most legal systems in the developed world share in common a two-tier verdict system: ‘guilty’ and ‘not guilty’. Typically, the standard for a judgment of guilty is set very high while the standard for a not-guilty verdict (if we can call it that) is quite low. That means any level of apparent guilt less than about 90% confidence that the defendant committed the crime leads to an acquittal (90% being the usual gloss on proof beyond a reasonable doubt, although few legal systems venture a definition of BARD that precise). According to conventional wisdom, the major reason for setting the standard as high as we do is the desire, even the moral necessity, to shield the innocent from false conviction.
There is, however, an egregious drawback to a legal system so structured. To wit, a verdict of ‘not guilty’ tells us nothing whatever about whether it is reasonable to believe that the defendant did not commit the crime. It offers no grounds whatever for inferring that an acquitted defendant probably did not commit the crime. That fact alone should make most of us leery about someone acquitted of a felony. Will a bank happily hire someone recently acquitted of a forgery charge? Are the neighbors going to rest easy when one of them was charged with, and then acquitted of, child molestation?
While the current proof standard provides ample protection to the innocent from being falsely convicted (the false positive rate is ~3%), it does little or nothing to protect the reputation of the truly innocent defendants. If properly understood, it fails to send any message to the general public about how they should regard and treat an acquitted defendant because it fails to tell the public whether it’s likely or unlikely that he committed the crime.
It would not be difficult to remedy this centuries-old mess, both for the public and for the acquitted defendant, by employing a three-verdict system, as the Scots have been doing for some time. Their verdicts are: guilty, guilt not proven and innocent. In a Scottish trial, if guilt is proven beyond a reasonable doubt, the defendant is found guilty; if the jury thinks it more likely than not that defendant committed no crime, his verdict is ‘innocent’; if the jury suspects that defendant did the crime but is not sure beyond all reasonable doubt, the verdict is ‘guilt not proven’. Both the guilt-not-proven verdict and the innocence verdict are officially acquittals in the sense that those receiving it serve no jail time. (This gives a whole new meaning to the well-known phrase ‘going scot-free’.)
The Scottish verdict pattern serves the interests of both the innocent defendant and the general society. The Scots know that if a defendant received an innocent verdict, then the jury believed it likely that he committed no crime and that he should be treated accordingly. That is both important information for the citizenry and a substantial protection for the innocent defendant himself, since the innocent verdict is in effect an exoneration, entailing the likelihood of his innocence.
On the other hand, the Scottish guilt-not-proven verdict sends out the important message to citizens that no other Anglo-Saxon legal system can; to wit, that the acquitted defendant (with a guilt-not-proven verdict) should be treated warily by society since he was probably the culprit, even though he was neither convicted nor punished.
Interestingly, there is ample use of the intermediary verdict. The Scottish government reports in a study of criminal prosecutions in 2005 and 2006 that it turned out that 71% of those defendants tried for homicide and acquitted received a ‘guilt-not-proven’ verdict. That means that about 7-in-10 acquittals for murder in Scotland involved defendants regarded by the jurors as having probably committed the crime.[1] In a more recent analysis, the Scottish government reported that in rape cases some 35% of acquittals resulted in ‘guilt not proven’ verdicts. In murder cases, the probably guilty verdict rate was 27% of all acquittals.[2]
It’s worth adding that Scotland’s intermediary verdict gives us access to information on an error whose frequency no other Western legal system can easily compute: to wit, the frequency of false acquittals. It tells us that, at least in Scotland, the rate of false acquittals hovers between 1-in-4 and 1-in-3. That is crucial information for those of us who believe that a legitimate system of inquiry—whether a legal one or otherwise— must get a handle on its error rates. Without knowing that, we cannot possibly figure out whether the distribution of erroneous verdicts is in line with our beliefs about the respective costs of the two errors.
Scottish criminal law has one other interesting feature worthy of mention in this context: a verdict there requires only a majority vote from the 15 citizens who serve as the jury. By contrast, most American states require a unanimous vote among 12 jurors, contributing to a situation in which mistrials are both expensive and common. They are expensive because they usually lead to re-trials, which are rarely cheap. In some jurisdictions in the US, 20% or more of trials end in a hung jury.[3] Not surprisingly, hung juries in Scottish cases are much less frequent.
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[1] See http://www.scotland.gov.uk/Publications/2006/04/25104019/11.) See also the Scottish Government Statistical Bulletin, Crim/2006/Part 11.
[2] See Scottish Government, Criminal Proceedings in Scotland, 2013-14, Table 2B.
[3] A study by Paula Agor et al., (Are Hung Juries a Problem? National Center for State Courts and National Institute of Justice, 2002) found that in Washington, D.C. Superior Courts some 22.4% of jury trials ended in a hung jury; In Los Angeles Superior Courts, the hung jury rate was 19.5%.
ADDITIONAL RESOURCES:
- Larry Laudan, “Need Verdicts Come in Pairs?” International Journal of Evidence and Proof, vol. 14 (2010), 1-24.
Previous guest posts:
- Larry Laudan (July 20, 2013): Guest Post: Larry Laudan. Why Presuming Innocence is Not a Bayesian Prior
- Larry Laudan (July 3, 2015): “When the ‘Not-Guilty’ Falsely Pass for Innocent”, the Frequency of False Acquittals (guest post)
Among Laudan’s books:
1977. Progress and its Problems: Towards a Theory of Scientific Growth
1981. Science and Hypothesis
1984. Science and Values
1990. Science and Relativism: Dialogues on the Philosophy of Science
1996. Beyond Positivism and Relativism
2006. Truth, Error and Criminal Law: An Essay in Legal Epistemology
Error Statistics Philosophy 
Larry: Thanks so much for your new guest post. Its interesting: I’ve always considered the legal standpoint of not guilty to capture an important aspect of my standpoint about testing in science. It’s not how probable a claim is but how well probed, so the onus is, or should be, similarly on whether a good job has been done in probing the ways in which interpretations of data can be erroneous. Never mind if it’s plausible or believable (on other grounds, perhaps), which is a distinct standpoint. This contrasts with the philosophy of “probabilism” so popular in philosophy of statistics. So now the question is whether this third category of “guilt not proven” is an ever better analogy for the statistical philosophy I favor. I realize that’s not the point of your post. However, I can see real benefits to labeling a lot of reported statistically significant results as “effect not shown” or “effect not statistically proven”–particularly those that don’t replicate. This could be a possibly temporary label until either the credentials are fixed or the reported effect is falsified altogether.
I hope to hear from some legal people.
Larry,
Thank you for your thoughtful post on the standard of proof in criminal cases.
My sense is that it is misleading to use the term “confidence” in this context, at least when speaking to statisticians, who will tend to understand the term through the lens of Neyman’s frequentist statistical theory and practice. And assuming that anyone could actually quantify his “posterior probability” of guilty, that is probability of guilty given the all the evidence in the case, I am horrified to think that this probability is set at 90% in any civilized, just society. You are certainly correct that American courts refuse to quantify “proof beyond a reasonable doubt,” but many commentators freely attempt to define it, and get it wrong. Here’s my humble attempt of practical certainty for a capital murder case: “Ladies and gentlemen of the jury, it is my privilege to represent the people of this State in this case. I will show that the defendant is guilty of all elements of the crime, beyond a reasonable doubt. Certainly, I have looked very carefully at the evidence before agreeing to bring this prosecution. And if I am ever shown to be wrong, I will trade places with the defendant and take whatever punishment I am asking you or the court to impose upon him.”
Any attempt to quantify the “false conviction” rate must take into account several nuances. First, in the United States, we have a system of plea bargaining in which prosecutors may pressure defendants into compromising their right to trial and accepting a guilty plea. Second, the falsity of the conviction itself has gradations. Someone who may be clearly be guilty of negligent homicide may be false convicted of manslaughter, or of murder. In other words, the falsity may be with respect to the conduct or the mens rea elements of the crime.
The Scots certainly have a more nuanced scheme for jurors to use in evaluating criminal trial evidence, but defendants in Scotland have no constitutional right against “double jeopardy.” I recall that there was a legislative effort to afford defendants such a right, but I lost track of whether the bill was actually enacted. See http://www.scotlawcom.gov.uk/law-reform/law-reform-projects/completed-projects/double-jeopardy/
The implications of a “not guilty” verdict can be seen in the U.S., where the defendant may not be retried for the same crime, but he may be sued in tort for his conduct, as famously happened in the O.J. Simpson case.
Nathan Schachtman
Nate: Thanks for your comment. If people really did look at “confidence” through Neyman’s lens, they wouldn’t be thinking of a posterior probability but rather an error probability, say the probability of such incriminating evidence from independent, reliable sources, under the assumption of non-guilt. N-P tests are often described using this analogy. (Laudan talks about this and the confusing standards of proof in his “Error and the Law”.) I agree that I understood BARD, as vague as it is, as requiring something like a 1% error probability, or certainly close to that, not mere 90% error avoidance. Don’t they always put those charts up with a list of stances ranging from 0 to 99% or something like that, instructing the jury that only the very top rung indicates BARD?
Mayo,
Yes, exactly, with respect to Neyman; that was my point.
I haven’t looked at the law recently, but I think a prosecutor would invite a reversal if he quantified PBRD in his summation, and certainly a trial judge would get reversed if he or she instructed the jury with a specific percentage. The point of my practical explanation of PBRD is that the system should find a way to explain that BRD means really, really sure; such as the system can come back and put you in the dock if you get it wrong. (Can you tell that I, like Rumpole, am a defense lawyer?)
Nathan
I see that those charts remain at a qualitative level without numbers.
[A comment on Nathan’s piece]
Nathan,
We agree about BARD being un- or ill-defined in US criminal trials. Where we may differ is over the protection offered by double jeopardy. As you probably know, most of the Anglo-Saxon world (including Australia, England and Canada) have junked the idea that an acquitted defendant can never be re-tried. In the last decade or so, they have all evolved towards a system in which if Jones is tried on a felony charge and acquitted, he can be re-tried (and possibly convicted the second time around) provided that new highly inculpatory evidence (often DNA studies) has emerged that would, in the opinion of a judge, be sufficient —when combined with the evidence from the original trial— to convince a rational juror that the defendant was guilty beyond a reasonable doubt. I have myself argued that US courts should be moving in that direction if there is any merit whatever to the idea that ‘the aim of a trial is to find out the truth’. (See my new book, The Law’s Flaws.)
Larry,
Yes; I was aware that an acquittal in some Commonwealth countries does not bar a subsequent retrial, although there is some court supervision over the practice and the circumstances for the retrial usually must be compelling. I mentioned the effort in Scotland to introduce a non-constitutional, legislative right to be free of subsequent prosecutions, but I have not studied the bill; nor have I tracked its history to see if it actually was enacted.
I certainly can imagine situations in the U.S., in which a retrial might well be in the interests of justice, but our “double jeopardy” protections are not likely going away any time soon. Our criminal law has moved away from that of the Commonwealth countries in major respects, not the least of which is that we abandoned the notion of common law of crimes a long time ago, and courts would see such a notion as a failure of the notice required by due process.
I suppose that an enterprising prosecutor, in the U.S., working under our constitution, might file an indictment or an information against an acquitted defendant. He or she might ask the defendant to waive double jeopardy in the interest of justice, which of course would likely never happen. On motion, a court would almost certainly dismiss the new indictment, but the prosecutor would have spoken to the citizenry: “the state thinks this person is guilty, and we set out the new evidence in the indictment, and we asked nicely for a waiver, which was refused, and so, you draw your own conclusions.” Not a satisfying outcome from the perspective of establishing the truth of the matter, but the indictment might have social effects, and perhaps civil side consequences as well.
Smalltownacademic,
I gave the example of the Goldman v. Simpson, in which the parents of Goldman sued, and won a judgment against, O.J. Simpson, because it illustrates the logical and legal consequences of an acquittal of criminal charges in a system in which the criminal defendant has no burden of proof. The states’ failure to show BRD that Simpson murdered Nicole Simpson and Ronald Goldman does not preclude the legal scenario in which a civil plaintiff could prove virtually identical factual elements, to a lesser degree of belief, in a civil action.
Nathan
Nate: I thought the IJ Simpson case was “jury nullification”. On a different case, it seemed altogether warranted when Pistorius was subjected to what we would call doubly jeopardy for murder.
@Nathan:
I don’t think what you are saying is inconsistent with what I have said. Double jeopardy and the presumption of innocence, as far as I understand them, only apply to criminal cases. So, my comments about weakening the presumption of innocence only apply to criminal cases.
Larry: i think the entire burden of proof would need to change if a person starts thinking they need to provide evidence of innocence. (You’ll say they don’t, but it would likely be perceived as the new job for lawyers.) I think people would rage against the idea of being treated warily because one’s lawyer didn’t do a good enough job to get him into the not-guilty box, but merely the guilt not proved box. But it’s the burden of showing not-guilty-as-innocence that would be most concerning, it seems, if suddenly thrust upon a system that wasn’t already long shaped with the 3 tier system. That’s my initial reaction anyway.
Deborah:
I read the situation differently. In the US system, an acquitted defendant (whether he committed the crime or not) remains under a cloud of suspicion since most everyone knows that a ‘not-guilty’ verdict does not warrant the inference that the defendant did not commit the crime. The three-choice system allows a significant number of factually innocent defendants to secure a verdict as strongly exculpatory as ‘innocent’. The US verdict of not-guilty does nothing of the sort. It leaves a warranted suspicion of actual guilt. What is it that leads you to believe that those acquitted in American trials are generally regarded by their peers and prospective employers as harmless, non-culpable fellow citizens? If you were charged with a felony and were genuinely innocent, wouldn’t you prefer to be tried in a system where there was a reasonable prospect you would emerge with an innocent verdict than going to trial in a system where the best outcome you could hope for was not-guilty?
One can even imagine a system that allows the defendant to choose pre-trial whether he wants a trial with the two US verdicts or the three Scottish ones? My hunch, perhaps wrong, is that most truly innocent defendants would opt for the Scottish triad.
Larry: it might be good to have a choice, but I imagine you’d have to seek a lawyer who specialized in showing your innocence. but I really know nothing about how these gradations are worked out in Scotland, having only heard of it with your post.
There are unfortunately many subclasses of case-types being introduced here, perhaps worthy of more elaborate consideration.
Let’s deal with what’s probably the most important of the subclasses below: Suppose a person is truly innocent, but doesn’t have the requisite evidence to prove it, for whatever unfortunate reasons. They will, at best, be categorized as “guilt not proven”. Therefore, there are now two categories that a false verdict can fall in, as opposed to just one earlier. So, if one compares this to the the dichotomous situation, the net threshold against the “not guilty” verdict has decreased. The consequence seems to be that, in this subclass stemming from the trichotomy, the “presumption of innocence” has been weakened compared to the dichotomous situation. So, the proposed system is potentially more aggressive against defendants than before.
As per my basic interpretation of the law, “not guilty” should indeed be interpreted as “innocent”…that is, as I see, the presumption of innocence. Otherwise, I am not sure, what it could mean. (Note: Clearly, I am not educated in these matters, and might be in need of a well-earned rebuke :))
Now, if the above is true, there is some difference between what happens in law and in science. As in science, there is no automatic presumption of the null being true unless shown otherwise. Of course, one could rebut that with the Fisherian claim that the null is somehow more basic (which to me feels a lot like the presumption of innocence).
Smalltownac: Adding an additional category doesn’t mean the probability of not-guilty goes down.
To my knowledge, Fisher never said to give a presumption to the null because it’s simpler–one of these vague terms no one can agree on how to define. This is something invented by others.
Another thing: even where it’s presumed the type 1 error is “the more serious”, failing to reject the null isn’t–by itself–evidence for the null in science. It’s no evidence against, and we may declare you haven’t shown the genuine effect. But we can use the result to set upper bounds to discrepancies from a null–scarcely something to be done in law, unless you want to see the third pigeon-hole that way (distance from innocence?).
@Mayo: In regards to science, I think you are saying something that my comment (above) is in accordance with. I don’t have any hassle with something like Laryy Laudan’s (henceforth, OP aka original poster) view being applied to science.
But, “there is some difference between what happens in law and in science”. Surely, Anglo-american law, there is a clear “presumption of innocence” [1]. So, as I see it, anyone who is not “guilty” is “innocent” in the current system, as a consequence of that presumption. Now, as per the trichotomy that was proposed by the OP, this presumption of innocence is being weakened. Therefore, the trichotomy substantially alters the current law framework [2], and also substantially increases the burden on the defendant. That’s all I meant by my comment.
Now, one could defend the new proposal by showing that it leads to better long term consequences for society. But, there is barely any direct discussion of this crucial issue by the OP. So, it seemed to me that the presumption of innocence was being weakened without a strong and clear argument for the weakening.
[1] Although, as I stated, some could view the Fisherian claim of the null being basic as showing some equivalence – again, I agree with you here; this interpretation is far from clear for the Fisherian viewpoint.
[2] Not just terminologically, but also its basic tenets.
Someone at Elba had changed the setting for comments. It’s now set so that anyone who had a first comment approved can comment automatically.
It’s a very interesting post, indeed.
I guess you could translate this to results of analytic (clinical) studies.
1. There is sufficient evidence to claim an effect of an exposure or intervention. (Guilty)
2. There is sufficient evidence to claim there is no effect or the effect is negligible. (Innocent).
3. Information is insufficient to make a claim as to the effects of an exposure or intervention. (Guilt not proven).
My take is that #3 is very similar to Dr. Mayo’s “not well probed”, as she suggests in her first comment.
Although on “guilt not proven”, in the post’s example, I sense there’s a bias (or maybe a belief?) towards guilty (an effect) which is not necessarily what happens in clinical trials, where there’s generally a bias towards innocent (no effect).
Hi Larry,
Thanks for this interesting post.
You wrote that the three-tiered Scottish system “serves the interests of both the innocent defendant and the general society.” I have some concerns about both points.
First, you write that the “Scots know that if a defendant received an innocent verdict, then the jury believed it likely that he committed no crime and that he should be treated accordingly. That is both important information for the citizenry and a substantial protection for the innocent defendant himself, since the innocent verdict is in effect an exoneration, entailing the likelihood of his innocence.”
Perhaps people would infer that a defendant was likely to be innocent if she received an innocent verdict. But it would be a questionable inference even in an ideal legal system, because jury verdicts are not decided on the basis of *the evidence* but rather on the basis of *the evidence admitted in court*. Often inculpatory evidence is, and should be, deemed inadmissible. And anyone who is aware of this general fact, but unaware of the details of any particular trial, may still have cause to view a defendant warily. So I’m not sure whether a three-tiered system would provide “substantial protection for the innocent defendant”.
Second, you write that “the Scottish guilt-not-proven verdict sends out the important message to citizens that no other Anglo-Saxon legal system can; to wit, that the acquitted defendant (with a guilt-not-proven verdict) should be treated warily by society since he was probably the culprit, even though he was neither convicted nor punished.”
As a corollary to the above, exculpatory evidence is sometimes deemed inadmissible, or simply not admitted by counsel; this is a serious concern given the paltry funds for public defenders. (For a recent example where crucial exculpatory evidence was not admitted in court, compare Glen Race’s trials in the US and Canada: https://www.thestar.com/news/insight/2016/08/05/why-was-glen-race-guilty-of-murder-in-america-but-not-in-canada.html.)
That point aside, I’m even more concerned about the effects of this system given the rampant racial discrimination in the US legal system. Consider Jennifer Eberhardt’s work on racial biases in sentencing. Wouldn’t juries be far more likely to reach a guilt-not-proven verdict for Black defendants simply on the basis of their skin color? So wouldn’t such defendants end up being tarred for life–“treated warily by society since he was probably the culprit”–which would have significant effects on how they are treated in civil society, in employment decisions, and so on?
Of course, such racial discrimination affects guilty verdicts too, and with far worse consequences. But I wonder whether racial discrimination would be more likely to affect guilt-not-proven verdicts precisely because no legal consequence attaches to that outcome. And I also worry that a defendant can appeal a conviction but would presumably have no realistic means of appealing a guilt-not-proven verdict.
These are just some off-the-cuff responses; I haven’t looked into the Scottish system. I’m sure that there’s a good chance that these concerns are misplaced or easy to address.
In any case, thanks for the post.
Daniel Wodak is my new colleague in Philosophy from Princeton! Thanks for the comment Daniel, I’ll now study it!
Daniel,
Your comments raise a plethora of complex questions. I won’t try to deal with all of them here. (The treatment of the question whether jurors mete out longer sentences for convicted black defendants than convicted white ones requires a great deal more data than I can muster here. I might just remark that American courts issue longer sentences for convicted male defendants (of whatever ethnicity) than to females convicted of the same crimes. Is that a result of discrimination against men? Of course not; it springs from the fact that men are more likely to be serial offenders than women are.)
As for your concern that it would be judicially impossible to appeal a false finding of ‘guilt not proven’, I agree that a problem exists. My proposed remedy —which goes well beyond the Scottish model—is that all species of acquittal should be appealable, just as convictions are. The absurd asymmetry in permitting the appeal of convictions while suppressing the appeal of acquittals leaves huge numbers of erroneous verdicts untouchable. The double jeopardy rule, in its current form, introduces an epistemic asymmetry that is without warrant. Virtually all non-Anglo-Saxon countries now allow such appeals; so increasingly do many English-speaking countries (e.g., England, Wales, Australia, etc.). Such a policy would address some of your concerns about racial discrimination leading to a disproportionate number of ‘guilt-not-proven’ verdicts for black defendants.
I strongly recommend Laudan’s paper which greatly illuminates this issue:
Larry Laudan, “Need Verdicts Come in Pairs?” International Journal of Evidence and Proof, vol. 14 (2010), 1-24.
Click to access laudan_14intljevidenceproof1.pdf
Pistorius gets to retain the 6 year sentence.
http://www.cnn.com/2016/08/26/africa/pistorius-prosecutor-appeal-rejected/
My question is: How do they let the same judge who erred on the first trial be the one to deal with appeals? She said he doesn’t deserve the 15 yr min for murder because he is a fallen hero and a good case for rehabilitation! Poor Reeva had a great case for a wonderful life until Pistorius shot her in his bathroom.