Under Scots law, a criminal trial may end in one of three verdicts: one of conviction ("proven") 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 defendant. 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 defendant'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. Technically (though not in the perception of the public), there is no difference between "not proven" and "not guilty" and both are equivalent to the "Not Guilty" verdict of English Law and of other jurisdictions. 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.
The not proven verdict was established in Scots law by 1728 (since then juries have been able to pass a not guilty verdict) but scholars dispute its origins.
On one account, advanced two hundred years ago by the historians Hume and Arnot, the third and distinctively Scottish verdict 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 defendant 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.
In a notable trial in 1728, a defence lawyer (Robert Dundas) persuaded a jury to reassert its ancient right of acquitting, of finding a defendant "not guilty". 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 defendant had killed the Earl. As the defendant 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 16th and 17th 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.
In modern use, the not proven verdict is used when the jury does not believe the case has been proven against the defendant but is not sufficiently convinced of their innocence to bring in a not guilty verdict. This perception is reflected in the popular paraphrase of "not proven" as meaning "not guilty, but don't do it again". A person receiving a not proven verdict is not fined or imprisoned, and is not subject to double jeopardy. The real effect of a not proven verdict is stigma for the acquitted person. The verdict can tarnish a person's reputation, as when socialite Madeleine Smith was charged with murder in nineteenth century Glasgow but acquitted with a not proven verdict. It has been said, "You don't go to prison, but nobody will ever talk to you again."
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:
- Many favour the "proven" verdict as it directs the jury to look at the evidence and to err on the side of the defendant if there is any doubt.
- Because the "not proven" verdict carries with it an implication of guilt but no formal conviction, the defendant is legally innocent but 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".
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 outside of Scottish law came when Senator Arlen Specter tried to vote "not proven" on an article of impeachment of Bill Clinton (see Lewinsky scandal), 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.
A recent proposal to introduce the not proven verdict into the United States is:
- Samuel Bray, "Not Proven: Introducing a Third Verdict", 72 U. Chi. L. Rev. 1299 (2005).
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.
- ^ Albert Borowitz: Blood & Ink, Kent State University Press, 2002, ISBN 0873386930, p 164
- ^ Scotsman.com "Bastard Verdict"
- ^ Specter, Arlen (12 February 1999). "Sen. Specter's closed-door impeachment statement". CNN. http://www.cnn.com/ALLPOLITICS/stories/1999/02/12/senate.statements/specter.html. Retrieved 2008-03-13. "My position in the matter is that the case has not been proved. I have gone back to Scottish law where there are three verdicts: guilty, not guilty, and not proved. I am not prepared to say on this record that President Clinton is not guilty. But I am certainly not prepared to say that he is guilty. There are precedents for a Senator voting present. I hope that I will be accorded the opportunity to vote not proved in this case. [...] But on this record, the proofs are not present. Juries in criminal cases under the laws of Scotland have three possible verdicts: guilty, not guilty, not proven. Given the option in this trial, I suspect that many Senators would choose 'not proven' instead of 'not guilty'. That is my verdict: not proven. The President has dodged perjury by calculated evasion and poor interrogation. Obstruction of justice fails by gaps in the proofs."
- ^ Public Broadcasting "The O.J. Verdict"