The bastard verdict and its influence on jurors

Abstract

The Scottish legal system is a unique jurisdiction, as jurors are able to give not proven verdicts in addition to the well-known Anglo-American verdicts (guilty and not guilty). The not proven verdict has never been legally defined, meaning that currently legal practitioners can only estimate why a not proven verdict has been given. The main aim of this study was to investigate if jurors violate the regularity principle, which is commonly incorporated in many rational choice models, by testing if the introduction of the not proven verdict has an impact on the outcomes given by jurors. In addition, this study aimed to test if the introduction of the not proven verdict has an impact upon how the not guilty verdict is perceived by jurors. In this study, 128 participants listened to two vignettes centred on homicide trials. Jurors could give one of two verdicts in one of the vignettes and one of three verdicts in the other vignette. The vignettes were counterbalanced in regard to how many verdicts could be given at the end of them. It was found that jurors in a three-verdict system were less likely to give a not guilty verdict in comparison to jurors in a two-verdict system, showing that jurors violate the regularity principle and that the not proven verdict may change how the not guilty verdict is perceived. The findings of this research have implications in relation to juror communication, article 6 of the European Convention of Human Rights and juror rationality.

Informing reform: The views of legal professionals on the unique aspects of Scottish Law

“…that legal professionals would prefer a verdict system of 'proven' and 'not proven'), and can make some similar conclusions to Ormston et al, 2 despite using different legal actors (legal professionals rather than jurors) and varying methods (survey vs. jury simulations). 7 By triangulating the data from different studies, using a variety of methods and different participants in the legal process, conclusions can have greater utility to policymakers. 7 For instance, taken together, the current study and the study by Ormston et al 2 indicate that (a) a binaryverdict system of 'proven' and 'not proven' would be preferred by legal professionals, who feel that it would provide greater access to justice, but (b) a binaryverdict system may increase convictions overall relative to a three-verdict system.…”

“…7 By triangulating the data from different studies, using a variety of methods and different participants in the legal process, conclusions can have greater utility to policymakers. 7 For instance, taken together, the current study and the study by Ormston et al 2 indicate that (a) a binaryverdict system of 'proven' and 'not proven' would be preferred by legal professionals, who feel that it would provide greater access to justice, but (b) a binaryverdict system may increase convictions overall relative to a three-verdict system. Similarly, legal professionals' preferred option of a 15-person jury system may increase convictions in comparison to a 12-person jury system, whereas the preferred option of a qualified majority verdict system may increase the number of acquittals in comparison to a simple majority verdict system.…”

“…Their results also showed that there was a small shift from guilty to not proven in ambiguous trials, that jurors were more confident in their verdicts in the threeverdict system and that 92% of jurors incorrectly believed that someone acquitted by a 'not proven' verdict would be treated differently from someone acquitted by a 'not guilty' verdict. Similarly, Curley et al 7 found that jurors were significantly less likely to give a 'not guilty' verdict in the three-verdict condition compared to the two-verdict condition, and that the 'guilty' verdict frequency was not significantly affected by the availability of the 'not proven' verdict. Their findings suggest that jurors interpreted the 'not proven' verdict to mean that 'the evidence is not convincing enough to say guilty, but I don't think they are innocent'.…”

“…This is consistent with Ormston et al's 2 findings and indicates that legal professionals agree with the findings of that study, as they suggest that the removal of 'not proven' may increase the frequency of 'guilty' verdicts. Three other studies using mock jurors found that the 'not proven' verdict did not favour the prosecution, however, [5][6][7] so the legal professionals' views were inconsistent with those findings. Previous research has highlighted that the availability of the 'not proven' verdict can significantly decrease the proportion of 'not guilty' 5,7 and 'guilty' verdicts 2 given.…”

“…Three other studies using mock jurors found that the 'not proven' verdict did not favour the prosecution, however, [5][6][7] so the legal professionals' views were inconsistent with those findings. Previous research has highlighted that the availability of the 'not proven' verdict can significantly decrease the proportion of 'not guilty' 5,7 and 'guilty' verdicts 2 given. Juror simulation research cannot assess whether this reduction is positive or a negative when considering the aims of the legal system (i.e.…”