Stephen W. Browne Rants and Raves

July 8, 2011

Do we need a Scotch verdict?

Filed under: Law,News commentary — Stephen W. Browne @ 8:15 pm

Note: Cross-posted at “Steve’s Place” at the Marshall Independent.

“It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.” Moses Maimonides (1135-1204,) Sefer Hamitzvot [Book of the Commandments]

Well the trial of Casey Anthony is over, and almost nobody is happy about it. Apparently nobody really believes she is innocent of murdering her little girl, not even her parents to judge by their actions.

This is not the same thing as the story of Casey Anthony being over of course. The news hounds will be following her around for quite some time now you may be sure. There are already rumbles of civil cases being filed, attempts to keep her from profiting from the inevitable tabloid and movie deals, etc.

From the statements of two of the jurors, it seems they didn’t really want to return a verdict of “not guilty” but didn’t feel they had the right to convict based on the evidence presented. Some contend they were just too chicken to rule on a death penalty case with only circumstantial evidence of guilt, however compelling. But then again, they weren’t in that jury box.

Others speculate about the hypothetical “CSI effect,” the notion that crime shows like CSI and its spin-offs have created unrealistic expectations about the power of forensic science to establish guilt beyond not just reasonable doubt, but all doubt.

I will just note it’s entirely possible to believe whole-heartedly that a person is guilty, and still not be able to vote guilty in good conscience. One of the more bizarre and uncomfortable experiences in my life was overhearing a man tell another how he murdered a friend at age 16, while they were out hunting together. I realized with horror that of course, with no witnesses to dispute this psychopath’s claim it was a hunting accident there was no way the jury could rightfully convict under our legal system’s rules of evidence. Hunting accidents do happen, and there was no arguable motive other than “he’s nuts.”

An acquitted criminal may admit their crime later – but there’s that double jeopardy thing in our Constitution.

I’m as uncomfortable as anyone else about the Anthony verdict – but I’m also glad our system takes Rabbi Moseh ben Maimon’s above-quoted commentary on the commandments seriously.

What I’m wondering now is, what if we had that legal option from Scottish law, the so-called “Scotch verdict”?

Scottish law has significant differences from English law in some cases. Under the laws of Scotland there are not two, but three possible verdicts in criminal cases. A legal precedent going back to at least 1728 provides for one verdict for conviction, and two for acquittal: not guilty, and not proven.

“Not proven” basically means the jury thinks the prosecution has not met the burden of proof, but they have strong doubts about the innocence of the accused. I don’t believe the option is used often and there is no difference in the outcome of the trial, the accused goes free.

As a practical matter, a number of not guilty verdicts are essentially informal Scotch verdicts, as in the Anthony case. I just wonder, what would happen if a jury were given the choice of making it official?


  1. This might be a great tool, if we can get it!
    “Not Guilty” — Double jeopardy applies.
    “Not Proven” — The prosecution gets one more attempt at trying the same charge. Any subsequent “Not Proven” verdicts are de facto “Not Guilty”.

    Comment by Zeke — July 9, 2011 @ 9:55 pm

  2. The Rabbi’s dictum is more commonly cited today as:
    ‘better that 10 guilty men go free than 1 innocent
    be hanged’. A lawyer friend long ago said that had
    he the opportunity to instruct on this at law school
    he would begin with a slide that said: ‘better one
    innocent be hanged than 11 guilty persons go free.

    If there must be some limits to the presumption of
    innocence and to the extent to which guilt is surely
    shown, the Scotch Verdict is a useful tool by which
    we could distinguish the deplorable behavior of Ms Casey Anthony from the narcissistic and dishonorable conduct of Nancy Grace whose public debasement ought to begin with disbarment & end with the loss of her

    Comment by bruce anderson — July 23, 2011 @ 9:18 am

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