Need Verdicts Come in Pairs?
| Published date | 01 January 2010 |
| Date | 01 January 2010 |
| DOI | 10.1350/ijep.2010.14.1.338 |
| Author | Larry Laudan |
| Subject Matter | Article |
NEED VERDICTS COME IN PAIRS?
Need verdicts come in
pairs?
By Larry Laudan*
Institute for Philosophical Research, National Autonomous
University of Mexico
Abstract Given the high standard of proof that operates in criminal cases, the
meaning of an acquittal is highly ambiguous. This disadvantages the genuinely
innocent defendant and also citizens who are unsure of the significance of any
given ‘Not Guilty’ verdict. The finders of fact may have taken any one of a wide
range of views in relation to the defendant’s guilt, and it is argued that the two
extremes of acquittal and conviction take insufficient account of this.
Keywords Conviction; Acquittal; Standard of proof; Beyond reasonable doubt;
Verdict of not proven
When it comes to acquittals, it would be hard to devise a verdict that is
less informative than the one currently in use.
Andrew D. Leipold1
intend to explore a plethora of issues surrounding the question whether
a trial system that utilises only two verdicts (guilty or not guilty) serves
the interests of criminal justice and of the larger society. The aim is not
to recommend any particular reform to the verdict system, but to try to render
explicit the kinds of factors that might play a role in addressing and settling such
large-scale questions. This exploration will be highly tentative and provisional,
not least because—apart from the odd and sometimes bemused discussion of the
Scottish system of three verdicts (below)—there is precious little serious discussion
doi:10.1350/ijep.2010.14.1.338
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2010) 14 E&P 1–24 1
1 A. Leipold, ‘The Problem of the Innocent, Acquitted Defendant’ 94 Nw U L Rev 1297 at 1302 (2000).
I
* Email: ll@larrylaudan.com. I am very grateful to Ronald Allen, Amalia Amaya, Erik Lillquist, Paul
Roberts, Harry Saunders and Burkhard Schafer for their helpful comments on an earlier draft of
this article.
of these issues to build upon.2But the intellectual motive should be clear: to
provoke a conversation about a matter that is almost universally taken as an
unexplored given, with a view to figuring out whether the current verdict system
is optimal or, failing that, if it is even satisfactory.
The status quo
In the vast majority of legal systems, whether of common or Roman law origin,
there are two permissible verdicts open to the trier of fact: guilty and not guilty
(or, more accurately, guilt not proven). The standard of proof in virtually all these
systems is deliberately very demanding, whether it is proof beyond a reasonable
doubt or an ‘intimate conviction’ about the guilt of the defendant (and the
multiple variants of the latter such as Mexico’s ‘full proof’, Argentina’s ‘healthy
criticism’, etc.).
In every legal system with only two outcomes and a demanding standard of proof
for the inculpatory one, the exculpatory verdict will be neither very informative
nor very exculpatory. Accordingly, acquittal in such systems will be stigmatising,
in the specific sense that it does little to remove the stigma already arising from
being arrested, charged with, and tried for, a crime; this result is incontrovertible,
even if the courts try to minimise the ambiguous message sent by an acquittal that
means nothing more than guilt not proven.3The more demanding the standard of
proof is, the weaker will an acquittal be at counteracting the stigma. If we gloss
the typical criminal standard of proof as meaning something like 95 per cent
confidence of guilt, then an acquittal signifies nothing more than that the trier of
2 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
NEED VERDICTS COME IN PAIRS?
2 One noteworthy exception to this generalisation is Leipold, above n. 1, which is a very thoughtful
treatment of many of the pertinent issues. Here is his own summary of his key proposal: ‘A
defendant who has been acquitted of criminal charges, or who has had the charges against him
dismissed, should have the statutory right to ask for a determination that he is factually innocent.
If a defendant is acquitted in a bench trial, or if the charges are dismissed prior to trial, the
defendant should be permitted to ask the judge for a finding that, not only has the government
failed to prove guilt, but also that the evidence shows his innocence. If the case is tried to a jury, the
defendant should be allowed to request that the jurors be given three verdict options: guilty, not
guilty, and innocent. If either the court or jury makes a determination of innocence, the
defendant’s record related to that charge should be expunged, and should be inadmissible in any
future proceeding’ (at 1297). In due course, I will suggest alternatives to some of Leipold’s specific
proposals, since his proposed standard for acquittal is, in my view, too weak to be seriously
exonerative (see below), but I here acknowledge the utility and suggestiveness of his discussion.
3 ‘With a high standard of proof, such as beyond a reasonable doubt, the public will know that some
defendants are being acquitted because of insufficient evidence, not because of actual innocence.
With that knowledge, the public will see the acquittal in a two-verdict system as stigmatizing and
tarnishing, and no well-intentioned decree can change that fact’: Samuel Bray, ‘Not Proven:
Introducing a Third Verdict’ 72 U Chi L Rev 1299 (2005).
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