The Scottish “Bastard Verdict”

In the USA juries typically have two legal verdicts one of acquittal, “not guilty” and one that leads to conviction “guilty.”

Scotland, which has been united with England (and Wales) for 307 years (and on Thursday will decide whether or not that union should continue) but for that entire time has maintained its own separate and unique legal system.  One feature of that system is the presence of three verdicts that juries and judges may choose from.  

The first of these is the simple convicting verdict most Americans will be used to, namely, “guilty.”  The second and third are both verdicts of acquittal and after one has been handed down a defendant is free from further prosecution under double jeopardy protections.  The first of these, “not guilty” is straightforward, the jury thinks the accused is not guilty of the crime.  The second, “not proven” is more unique, in this case the jury does not know for certain whether or not the accused committed the crime but they are certain that the prosecution did not make their case.

The verdict has proven controversial in Scottish history, it was Sir Walter Scott who first called it the “bastard verdict” (the author would like to stress that in mentioning this name it is not his intention to make judgments or aspersions about or towards persons whose parents did not happen to be married at the time of their birth) the name by which it is commonly referred to by today in Scotland.

“Not guilty” is often seen as a jury releasing someone who was in fact innocent, while “not proven,” which is supposed to simply mean that the prosecution failed to make their case, often is taken as more of a “guilty but we can’t prove it” verdict.

While some Scots might bemoan their third verdict, I can see some benefits, for instance, as an option in any one of the several widely known murder or fraud cases where persons (usually celebrities) have received not guilty verdicts.  In those cases (well really any case but I’ll stick with my example) where juries voted “not guilty” when they suspected the defendant was in fact “guilty” but where the prosecution did not prove their case, “not proven” would prove beneficial to society as a whole.  “Not proven” verdict in such a case would:

 (1) allow someone who the government has not proven “guilty” to go free and afford them their important double jeopardy protections,

(2) allow those in society convinced of a particular persons guilt to at least take some solace that while they are acquitted in the eyes of the law they are not per se “innocent,” (although conversely someone who was actually “innocent” would forever have some degree of stigma attached to them) and

(3) allow voters another means by which to gauge the effectiveness of their public prosecutors, after all you can’t necessarily blame a prosecutor because a jury did not think a defendant was “guilty” but if a jury did not think the prosecution made their case then there is at least some blame that may reasonably directed at the prosecutors.

Adding a third verdict to the court system in the USA might not be something one should actively consider, but it does prove for some interesting thought and conversation on at least an academic level.