Not proven

Criminal procedure
Criminal trials and convictions
Rights of the accused
Right to a fair trial  · Speedy trial
Jury trial  · Presumption of innocence
Exclusionary rule (U.S.)
Self-incrimination  · Double jeopardy
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Acquittal  · Conviction
Not proven (Scot.)  · Directed verdict
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Dangerous offender (Can.)
Capital punishment  · Execution warrant
Cruel and unusual punishment
Post-conviction events
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Related areas of law
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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 it began to use it 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 pursuade 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. However technically under Scots law (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.

Out of the country, the "not proven" verdict may be referred to as the Scottish Verdict or the Scotch Verdict, although in Scotland itself it may be referred to coloquially as the bastard verdict [1], which was a term coined by Sir Walter Scott, who himself 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 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.

Not guilty

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. As the defendant had undoubtedly killed the Earl, 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. However 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).

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.

Modern use

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. 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.

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 proven".
  • The removal of the "not guilty" verdict would in effect force Scots juries to pass a verdict based solely on the facts thus denying them their right to jury nullification (ironically placing Scots jurors back in a similar position to that which originally forced the development of the three verdicts).

Use in other jurisdictions

The Scottish verdict has not been permanently adopted outwith 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.[2]

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).

Analogy to science

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 certain, but the most that can be said about a theory is what the preponderance of the evidence suggests.

References

See also

Cases

Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.

Differences between civil law and common law systems


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The rights of the accused is a class of rights that apply to a person in the time period between when they are formally accused of a crime and when they are either convicted or acquitted.
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The Right to a fair trial is an essential right in all countries respecting the rule of law. It is explicitly proclaimed in Article Ten of the Universal Declaration of Human Rights, the Sixth Amendment of the US Constitution, and Article Six of the European Convention of Human
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Speedy trial refers to one of the rights guaranteed by the United States Constitution to defendants in criminal proceedings. The right to a speedy trial, guaranteed by the 6th Amendment, is intended to ensure that defendants are not subjected to unreasonably lengthy
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jury trial to be a fundamental civil liberty or civil right; however most other nations do not recognize it as a fundamental civil liberty, civil right, or human right, because jury trials evolved within common law systems rather than civil law systems.
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Presumption of innocence is a legal right that the accused in criminal trials has in many modern nations. It states that no person shall be considered guilty until finally convicted by a court.
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In United States constitutional law, the exclusionary rule is a legal principle holding that evidence collected or analyzed in violation of the U.S. Constitution is inadmissible for a criminal prosecution in a court of law (that is, it cannot be used in a criminal trial).
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Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when
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Double jeopardy is a procedural defense (and, in many countries such as the United States, Canada, Mexico, Japan and India, a constitutional right) which
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verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. (see Black's Law Dictionary, p. 1398 (5th ed. 1979) The term, from the Latin veredictum, literally means "to say the truth" and is derived from Middle English
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acquittal is a verdict of not guilty, or some similar end of the proceeding that terminates it with prejudice without a verdict of guilty being entered against the accused. The opposite result is a conviction.
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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 (i.e. "not guilty"). (In Scotland and in the Netherlands there is also a third verdict of "not proven", which counts as an acquittal.
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In law, a directed verdict is an order from the judge presiding over a jury trial that one side or the other wins. Typically, the judge orders a directed verdict after finding that no reasonable jury could reach a decision to the contrary.
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In law, a sentence forms the final act of a judge-ruled process, and also the symbolic principal act connected to his function.
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A mandatory sentence is a court decision setting where judicial discretion is limited by law. Typically, people convicted of certain crimes must be punished with at least a minimum number of years in prison. Mandatory sentencing laws vary from country to country.
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A suspended sentence is a legal construct. Unless a minimum punishment is prescribed by law, the court has the power to suspend the passing of sentence (generally for a period of three years) and place the offender on probation.
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A custodial sentence is a judicial sentence, imposing a punishment (and hence the resulting punishment itself) consisting of mandatory custody of the convict, either in prison (incarceration) or in some other closed therapeutic and/or (re)educational institution, such as a
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dangerous offender may be subjected to an indeterminate prison sentence, whether or not the crime carries a life sentence. The purpose of the legislation is to detain offenders who are deemed too dangerous to be released into society because of their violent tendencies, but whose
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Capital punishment, also called the death penalty, is the execution of a convicted criminal by the state as punishment for crimes known as capital crimes or capital offences.
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An execution warrant or death warrant is a warrant which authorizes the execution of a judgment of death (capital punishment) on an individual.

In the United States the Governor of the state, or the President of the United States in federal death penalty cases,
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cruel and unusual punishment for crimes is found in the English Bill of Rights signed in 1689 by King William III and Queen Mary II who were then the joint rulers of England following the 'Glorious Revolution' of 1688.
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Parole can have different meanings depending on the area and judiciary system. All of the meanings derive from the French parole, meaning "(spoken) word".
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Probation is the suspension of a jail sentence - the criminal who is "on probation" has been convicted of a crime, but instead of serving jail time, has been found by the Court to be amenable to probation and will be returned to the community
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Under the criminal law of England and Wales, a tariff is the minimum period that a person serving an indefinite prison sentence must serve before that person becomes eligible for parole.
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In the British criminal justice system, a life licence specifies the conditions under which a prisoner sentenced to life in jail may be released.

A prisoner who has served their tariff (minimum sentence) becomes eligible for parole.
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A miscarriage of justice is primarily the conviction and punishment of a person for a crime that he or she did not commit. The term can also be applied to errors in the other direction — "errors of impunity" — and to civil cases, but those usages are rarer, though the
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pardon is the forgiveness of a crime and the penalty associated with it. It is granted by a sovereign power, such as a monarch or chief of state or a competent church authority.
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Criminal law
Part of the common law series
Elements of crimes
Actus reus  · Causation  · Concurrence
Mens rea  · Intention (general)
Intention in English law  · Recklessness
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Part of the common law series
Types of evidence
Testimony · Documentary evidence
Physical evidence · Digital evidence
Exculpatory evidence · Scientific evidence
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