Not proven
Encyclopedia
Not proven is a verdict
available to a court
in Scotland.
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. 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.
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.
) 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.
. 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
-- his votes on the two articles in question 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. Despite the appeal to Scottish law, Senator Specter's vote was recorded as one of "not guilty".
Several years ago a proposal was made in an American law review to introduce the not proven verdict into the United States.
) 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.
Verdict
In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. The term, from the Latin veredictum, literally means "to say the truth" and is derived from Middle English verdit, from Anglo-Norman: a compound of ver and dit In law, a verdict...
available to a court
Courts of Scotland
The civil, criminal and heraldic Courts of Scotland are responsible for the administration of justice. They are constituted and governed by Scots law....
in Scotland.
Under Scots law
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
, a criminal trial
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
may end in one of three verdicts: one of conviction
Conviction
In law, a conviction is the verdict that results when a court of law finds a defendant guilty of a crime.The opposite of a conviction is an acquittal . In Scotland and in the Netherlands, there can also be a verdict of "not proven", which counts as an acquittal...
("proven") and two of acquittal
Acquittal
In the common law tradition, an acquittal formally certifies the accused is free from the charge of an offense, as far as the criminal law is concerned. This is so even where the prosecution is abandoned nolle prosequi...
("not proven" and "not guilty").
Historically, the two verdicts available to Scots juries
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
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
Jury nullification
Jury nullification occurs in a trial when a jury reaches a verdict contrary to the judge's instructions as to the law.A jury verdict contrary to the letter of the law pertains only to the particular case before it; however, if a pattern of acquittals develops in response to repeated attempts to...
). 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
Acquittal
In the common law tradition, an acquittal formally certifies the accused is free from the charge of an offense, as far as the criminal law is concerned. This is so even where the prosecution is abandoned nolle prosequi...
used when the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
or jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
does not have enough evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
to convict
Conviction
In law, a conviction is the verdict that results when a court of law finds a defendant guilty of a crime.The opposite of a conviction is an acquittal . In Scotland and in the Netherlands, there can also be a verdict of "not proven", which counts as an acquittal...
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. 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.
History
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
David Hume
David Hume was a Scottish philosopher, historian, economist, and essayist, known especially for his philosophical empiricism and skepticism. He was one of the most important figures in the history of Western philosophy and the Scottish Enlightenment...
and Arnot
Arnot
Arnot may refer to*Arnót, Hungarian village*Arnot Mall, a shopping mall in New York*Madeleine Arnot, sociologist*Blair Arnot, skateboarder*The Arnot Baronets*David Arnot, Scottish divine*John Arnot, Jr., US politician...
, 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.
Not guilty
In a notable trial in 1728, a defence lawyer (Robert DundasRobert Dundas, Lord Arniston, the elder
Robert Dundas, Lord Arniston, the elder was a Scottish judge.The second son of Robert Dundas he served as Solicitor General for Scotland from 1717 to 1720 and as Lord Advocate from 1720 to 1725...
) persuaded a jury to reassert its ancient right of acquitting, of finding a defendant "not guilty". The case involved Carnegie of Finhaven
Carnegie of Finhaven
Carnegie of Finhaven is famous for his trial for the killing of Charles Lyon, 6th Earl of Strathmore and Kinghorne which resulted in the not guilty verdict becoming a recognised part of Scots law and establishment the right of Scots juries to judge the whole case and not just the facts, a right...
who had accidentally killed the Earl of Strathmore
Charles Lyon, 6th Earl of Strathmore and Kinghorne
Charles Lyon, 6th Earl of Strathmore and Kinghorne was a Scottish peer and the son of John Lyon, 4th Earl of Strathmore. His exact date of birth is unknown but he was baptised on 12 July 1699....
. 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
William Penn
William Penn was an English real estate entrepreneur, philosopher, and founder of the Province of Pennsylvania, the English North American colony and the future Commonwealth of Pennsylvania. He was an early champion of democracy and religious freedom, notable for his good relations and successful...
in 1670, in which an English jury first gained the right to pass a verdict contrary to the law (known as jury nullification
Jury nullification
Jury nullification occurs in a trial when a jury reaches a verdict contrary to the judge's instructions as to the law.A jury verdict contrary to the letter of the law pertains only to the particular case before it; however, if a pattern of acquittals develops in response to repeated attempts to...
), and the trial of John Peter Zenger
John Peter Zenger
John Peter Zenger was a German-American printer, publisher, editor, and journalist in New York City. He was a defendant in a landmark legal case in American jurisprudence that determined that truth was a defense against charges of libel and "laid the foundation for American press freedom."-...
in New York in 1735 in which jury nullification is credited with establishing freedom of the press
Freedom of the press in the United States
Freedom of the press in the United States is protected by the First Amendment to the United States Constitution. This clause is generally understood as prohibiting the government from interfering with the printing and distribution of information or opinions, although freedom of the press, like...
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.
Reform
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".
Use in other jurisdictions
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 OntarioOntario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
. Its most famous use outside of Scottish law came when Senator
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
Arlen Specter
Arlen Specter
Arlen Specter is a former United States Senator from Pennsylvania. Specter is a Democrat, but was a Republican from 1965 until switching to the Democratic Party in 2009...
tried to vote "not proven" on an article of impeachment of Bill Clinton
Impeachment of Bill Clinton
Bill Clinton, President of the United States, was impeached by the House of Representatives on charges of perjury and obstruction of justice on December 19, 1998, but acquitted by the Senate on February 12, 1999. Two other impeachment articles, a second perjury charge and a charge of abuse of...
(see Lewinsky scandal
Lewinsky scandal
The Lewinsky scandal was a political sex scandal emerging in 1998 from a sexual relationship between United States President Bill Clinton and a 25-year-old White House intern, Monica Lewinsky. The news of this extra-marital affair and the resulting investigation eventually led to the impeachment of...
-- his votes on the two articles in question 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
Presumption of innocence
The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
on the part of Simpson. Despite the appeal to Scottish law, Senator Specter's vote was recorded as one of "not guilty".
Several years ago a proposal was made in an American 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 SaganCarl Sagan
Carl Edward Sagan was an American astronomer, astrophysicist, cosmologist, author, science popularizer and science communicator in astronomy and natural sciences. He published more than 600 scientific papers and articles and was author, co-author or editor of more than 20 books...
) as a metaphor
Metaphor
A metaphor is a literary figure of speech that uses an image, story or tangible thing to represent a less tangible thing or some intangible quality or idea; e.g., "Her eyes were glistening jewels." Metaphor may also be used for any rhetorical figures of speech that achieve their effects via...
for the operation of the scientific method
Scientific method
Scientific method refers to a body of techniques for investigating phenomena, acquiring new knowledge, or correcting and integrating previous knowledge. To be termed scientific, a method of inquiry must be based on gathering empirical and measurable evidence subject to specific principles of...
, 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.
Cases
- Helen DuncanHelen DuncanHelen Duncan was a Scottish medium best known as the last person to be imprisoned under the British Witchcraft Act of 1735.-Early life:...
- Alfred John Monson
- Madeleine SmithMadeleine SmithMadeleine Hamilton Smith was a 19th century Glasgow socialite who was the defendant in a sensational murder trial in Scotland in 1857...
- Trials involving Silvio BerlusconiTrials involving Silvio Berlusconi-Allegations:Silvio Berlusconi has an extensive record of criminal allegations, including mafia collusion, false accounting, tax fraud, corruption and bribery of police officers and judges.Berlusconi has been tried in Italian courts in several cases...
- West Port murdersWest Port murdersThe Burke and Hare murders were serial murders perpetrated in Edinburgh, Scotland, from November 1827 to October 31, 1828. The killings were attributed to Irish immigrants William Burke and William Hare, who sold the corpses of their 17 victims to provide material for dissection...