But everyone knows they’re guilty—Scotland’s Bastard Verdict

When Casey Anthony was found not guilty of having murdered her daughter Caylee last month, many who followed the case were outraged. The circumstantial evidence seemed convincing, but not enough for jurors to remove reasonable doubt. As a character on Law and Order once said, there is a difference between knowing that someone is guilty and proving it in court.

So there were demonstrations outside the courthouse, as Anthony seemed to rejoice in the verdict, reinforcing the image of her as a self-centered and callous mother. So, too, many remain convinced that O.J. Simpson murdered his ex-wife Nicole Brown Simpson and her friend Ronald Goldman and hope that Anthony will also wind up in prison one day, even if it is on another charge.

And it is more than galling that banks that enabled the enormous fraud of the Madoff Ponzi scheme had the case against them thrown out by federal court last week, even as innocent investors with Madoff are being ordered to pay back other innocent Madoff investors.

In all three cases, the courts followed the law; juries and judges did their jobs, but in none of these instances has it felt as though justice has been served. These decisions point to the difference between the law and morality.

I am, like many, left with a bad taste. I understand and support a system that adheres to the letter of the law, throws out tainted evidence and wants objective proof, not gut feelings, to convict someone. There is good reason when cases are thrown out over procedural errors. Our systems puts a brake on tyranny of the mob and the state and, in the long run, serve everyone’s interest by expanding the realm of personal and civil liberties.

While such decisions uphold the rule of law, there is a troubling underside. The public’s faith in the justice system is eroded. We want bad people to be punished and not walk away with smiles on their faces and buckets of money in their pockets. Humans have a deep need to feel that things are fair. That means, in part, that people get what they deserve. A sense of fairness is built into our psyches. Cooperation depends upon cheaters being punished, and without cooperation, humankind couldn’t survive. It is no accident that often the first complaint of children is, “That’s not fair!” A sense of fairness/justice requires that murderers/horrific parents/manipulating businesspeople be punished, even if they are beyond the reach of the law.

There is a way to satisfy both the requirements of a good legal system and our sense of fairness. Scottish law recognizes what is colloquially called the bastard verdict, a term coined by Sir Walter Scott, then sheriff of Selkirk. Unlike our binary system that offers only two choices, guilty or not guilty, in Scotland a third alternative is possible: Not Proven. In the Middle Ages in Europe, courts focused on the immediate cause and it made no difference if the perpetrator was human. So if the bell fell and cracked a ringer’s skull or a horse smashed a farrier’s skull, the bell would be punished by smelting and the horse by being killed. The only matter to be considered was the immediate cause of injury. Context and will were irrelevant.

In 1728, jurors frustrated by being forced to look at only the facts, decided to render a Not Guilty verdict, rejecting the Proven or Not Proven options, when it was clear to them that Carnegie of Finhaven had accidentally killed the Earl of Strathmore. Today, the Not Proven verdict is rendered when a jury isn’t convinced that a person is innocent but doesn’t believe that the case against the accused has been proven.
Under the Not Proven verdict, the accused is acquitted and is Not Guilty in the eyes of the law, but accused wears the badge of shame.

The Scottish system has its drawbacks. A truly innocent person may be stigmatized based on nothing more than a jury’s prejudices. The accused may have an accent, act guilty, be the wrong color or wear the wrong clothes. However, in the same way that you need a unanimous decision in order to prove criminal guilt, it is possible to require a majority decision in determining Not Proven. Or the bar required for the decision can be lowered to that of civil cases, where the standard isn’t beyond a reasonable doubt but requires only that the preponderance of the evidence to tip the scales.

The present judicial system fosters cynicism. The Scottish alternative is worth considering as a way of both preserving what is good about what we have while at the same time allowing for the legitimate expression of disapproval of the person who walks away claiming innocence while everyone knows that isn’t so, at least from a moral point of view.


2 thoughts on “But everyone knows they’re guilty—Scotland’s Bastard Verdict

  1. Guilty verdicts and their corresponding sentences are rendered in the United States at rate that is amongst the highest in the world. We have over 2 million people in jail/prison, millions more on probation/ parole. When these persons are released their prospects of finding employment and reestablishing themselves in society are severely diminished due to stigma. I think the last thing that should happen is that we add another layer of “we think not quite innocent” folks to this army of the socially marginalized to make “everybody who knows they really did it” feel vindicated. As for Madoff, while it is true that some victims were truly innocent, yet many of his investors (including some who helped him with feeder funds) knew his returns were improbable, thought he was up to something fishy like insider trading or front running, and still continued to like getting their 10-20% returns and so turned a blind eye and gave him more of their cash. With new categories, maybe we can also establish a category for victims who are not-quite-innocent, too? In short, I think that the dichotomous guilty/not guilty system is broken, but making it a trichotomous system would only make things worse. While restorative justice is still untested at the national level, its model that recognizes the social relationships and consequences of the harmful act as such and tries to reduce the harm rather than appease an idea of “justice” seems to be a better place to invest our care and attention.

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