Not Guilty and Don t Do It Again
five How do jurors understand the not proven verdict?
Cardinal findings
- The meaning and consequences of the non proven verdict were rarely discussed at whatsoever length in deliberations, even in those juries where that verdict was returned.
- Where the non proven verdict was discussed, there was inconsistency in understanding of its pregnant and confusion over its effect. In particular, jurors were not ever clear how it differed (if at all) from a not guilty verdict.
- The judge's management that "not guilty and not proven accept the same effect, amortization, which means that the accused cannot be tried again for the same offence" does appear to increment juror understanding. Jurors in two-verdict juries, who did not receive this direction, were more likely than juries in 3-verdict juries to call up that the accused tin can be retried if the verdict is not proven.
- The idea that the non proven verdict means the defendant is guilty, just that guilt has not been proven to the necessary standard for confidence, arose frequently (though usually briefly) during deliberations. Jurors also expressed the view that there is a lingering stigma fastened to a verdict of not proven.
- Related to this, jurors choosing the not proven verdict tended to base their decision on a conventionalities that that the bear witness did not prove guilt beyond reasonable doubt, or on the difficulty in choosing betwixt two competing accounts.
- Jurors choosing the not guilty verdict (where both acquittal verdicts were available), in contrast, tended to base of operations this on a belief that the accused was innocent, or some aspect of the complainer's or witness' evidence that suggested that they were not giving a true account.
- More jurors thought that a verdict of not proven should be returned when jurors demand to compromise to reach a verdict than believed a not guilty verdict should be used in that situation. All the same, in that location was likewise a view that the not proven verdict was a "cop out".
5.1 Introduction
Equally outlined in Affiliate i, Scottish juries are unique in that they have two verdicts of acquittal open to them: not guilty and not proven. The legal consequences of the ii verdicts are exactly the aforementioned - the defendant is cleared of the charges and cannot ordinarily exist re-prosecuted for the same offence.[86] The not proven verdict'southward beingness in Scots law has been described every bit a "historical blow".[87] There were no gear up forms of verdict used by early juries: their role was merely to make up one's mind on the guilt or innocence of the accused. The role of the jury was altered in the early on 17th century past a change in procedure whereby juries ceased to declare accused persons guilty or innocent, and instead returned 'special verdicts' considering whether individual factual allegations were proven or not proven. The decision on the guilt or innocence of the accused was and so taken past the judge presiding over the case. In 1728, a landmark legal case (the trial of Carnegie of Finhaven) re-established the jury'due south correct to return a verdict of not guilty, rather than leaving that decision to the estimate. By the 19th century, lawyers had come to view the old 'special verdicts' as irrelevant. 'Not proven', still, had become something of a legal fixture, and juries connected to use information technology alongside 'guilty' and 'not guilty'. This was not in its original meaning, where 'not proven' referred to a failure to prove individual facts, only equally one of two acquittal verdicts that both meant a failure to prove guilt. The not proven verdict as it is used today is not defined in statute or example law. Information technology is simply ane of ii possible amortization verdicts and the standard text on Scottish criminal procedure states that juries should not be told anything almost its significant.[88]
This chapter presents findings on how jurors understand the non proven verdict and why they might choose it over the other verdicts bachelor to them. Information technology draws on information from ii sources: individual questionnaires completed by jurors before and afterward their deliberations, and the jury deliberation transcripts and videos.
Of the 64 mock juries in our report, half (32) had two verdicts open to them (that is, they could simply return a verdict of guilty or non guilty) and one-half were able to choose between three verdicts (guilty, not guilty or not proven). In his concluding directions to jurors, the judge in the trial films told them which verdicts were available to them. Jurors in two-verdict juries were told merely that there were two verdicts open to them - guilty and not guilty. In three-verdict juries, jurors were given additional direction on the not proven verdict, based on the guidance given to Scottish judges for directing juries in real trials, as follows:
"Finally, I need to tell you that at that place are 3 verdicts you can return on this charge: non guilty, non proven, or guilty. Not guilty and not proven accept the same effect, acquittal, which means that the accused cannot be tried again for the same offence." [89]
Bated from this direction, jurors were told goose egg about the not proven verdict. If jurors did inquire questions nigh it, the researchers told them that they were unable to provide any further guidance. The non proven verdict was not mentioned at all in the questionnaire that jurors completed prior to deliberating, except that jurors were asked to land what they thought the verdict should be (and then jurors in iii-verdict juries had the choice of choosing non proven). Afterwards deliberating, notwithstanding, jurors in both two-verdict and 3-verdict juries were asked a number of questions about their understanding of the not proven verdict. A questionnaire with the same questions virtually the non proven verdict was too completed by 'spare' jurors (those who watched the trial videos but who were not needed for the deliberations).[90] Subsequent references to postal service-deliberation questionnaire information therefore includes the responses of these 'spare' jurors besides as those who actually deliberated.
5.2 Extent of word of non proven during deliberations
The research squad coded the level of discussion of not proven'southward meaning or consequences in each jury deliberation, recording whether this was discussed "in some item", merely "minimal references" were made, or information technology was not discussed at all.
Across the study it was rare for whatsoever very lengthy discussion of the not proven verdict to accept place, even in juries where that verdict was ultimately returned. The code "in some detail" therefore covered anything other than the nigh minimal discussion.
There were no statistically significant differences in the level of word of not proven betwixt 12 and xv-person juries, or between juries asked to reach a unanimous verdict and those required to reach a simple bulk (see Annex J, Table J.ix). Juries in rape trials were marginally more likely than their set on trial counterparts to discuss not proven "in some item", although they were no more likely to return a verdict of not proven at the stop of the deliberation procedure.[91]
Unsurprisingly, however, the non proven verdict was much more probable to be discussed "in some particular" by juries that had it available to them. In 11 of the 32 three-verdict juries, the not proven verdict was discussed "in some detail". Most of those juries (9 out of the 11) were juries in which a not proven verdict was returned. However, in five of the 32 iii-verdict juries there was no give-and-take at all of the meaning or consequences of the not proven verdict, despite the fact that, in four out of these five, a not proven verdict was ultimately returned. Moreover, in two out of these 5 juries, several jurors switched their verdict from either guilty or not guilty to not proven during the course of the deliberations.[92] There was no obvious pattern in terms of trial type, majority required, or length of deliberation to the v juries where the not proven verdict was not discussed at all.[93]
It is notable that there was also at to the lowest degree some discussion of the non proven verdict in half (16 of 32) of juries in the 2-verdict condition, despite there having been no mention of it in the guess's directions or pre-deliberation questionnaire. This indicates that there is wider awareness of the non proven verdict among the full general public. The nature of this discussion was either merely to point out that a non proven verdict would normally be available in a Scottish criminal trial, or to lament the fact that it was non available to them - normally considering jurors were finding it hard to determine on a verdict. For example:
"I don't think there is enough evidence against [the accused], and that's it in a nutshell, it's quite clear. I would similar to take a not proven verdict or something like that simply tin just become for not guilty."
(Assault trial / two-verdict / 15-person / unanimity)
5.3 Self-assessed understanding of not proven
Later on returning a verdict, all jurors were asked to assess how well they felt they understood the not proven verdict (on a scale of one to 7, where one was "I do not understand the not proven verdict at all" and seven was "I fully understand the non proven verdict"). Of course, self-assessed understanding does not necessarily equate to actual understanding.[94] The ways in which jurors actually understood the not proven verdict are explored in the next section of this chapter (5.4). However, 51% of all jurors felt that they 'fully understood' the not proven verdict.
Self-assessed understanding of not proven was college in iii-verdict juries (58% indicated that they fully understood the verdict, compared to 45% in two-verdict juries).[95] There were no statistically significant differences in average levels of self-assessed agreement of not proven by gender, age, education level, trial type, jury size or majority required.
During deliberations, jurors sometimes expressed uncertainty or confusion almost the non proven verdict. In nine of the 32 iii-verdict juries, jurors either stated that they did not understand the not proven verdict or asked other jurors (or in one instance, the researcher) what it meant. The nature of their uncertainty varied. In 1 jury, information technology was centred on whether not proven was actually a verdict of acquittal:
"Well, acquitting is non 'not proven', that's not guilty."
"Is that not guilty?"
"No, that's not proven, yous must acquit..Then, basically not proverb he was guilty."
"So, you add the not proven and not guilty together."
"I don't empathize that."
(Assault trial / iii-verdict / 12-person / simple bulk)
In two other juries, jurors expressed uncertainty about whether not proven and not guilty are the aforementioned thing, or whether not guilty differs considering it requires proof of innocence.[96] In another, a juror asked whether not proven would automatically exist the verdict if the jury was split 50/50 between acquittal and conviction. Thus, while the judge'due south instructions announced to get some manner to improving juror understanding of the not proven verdict, a lack of clarity virtually its precise meaning and employ persisted among some jurors.
It should be stressed, though, that while in that location was some incertitude over the significant of the non proven verdict, jurors relatively rarely expressed behavior about the verdict that were definitively incorrect. This is in part because, every bit noted earlier, the not proven verdict does not accept a specific definition beyond it existence ane of ii verdicts of acquittal. This leaves room for a number of different understandings of its meaning and purpose, which are explored beneath.
v.4 Specific understandings of the not proven verdict and its consequences
After deliberating, jurors were asked a number of questions about the not proven and not guilty verdicts as part of the post-deliberation questionnaire. These were designed to explore their understanding of the differences between the two amortization verdicts, and why jurors might choose 1 over another. This section reports on findings from these questions and on the diverse ways in which the not proven verdict was discussed during deliberations.
five.4.1 "Guilty, but you tin't prove information technology"
The idea that the not proven verdict should be used if jurors suspect the defendant is guilty, but feel that this has non been proved beyond reasonable doubt, was the well-nigh prominent theme in both the deliberations and questionnaire responses.
A majority (seventy%) thought that if a jury thinks the accused is guilty, but do not retrieve the evidence proves it beyond reasonable doubt, they should return a verdict of non proven. Just 7% said that it does not thing which of not proven or not guilty is returned, and 12% that the jury should return a verdict of not guilty (Effigy 5.1). The view that not proven is the most appropriate verdict if jurors think the accused is guilty but the standard of proof has not been met was more than common amidst: rape trial jurors than assail trial jurors (75% compared to 64%); jurors who had the not proven verdict bachelor during their deliberations compared with those asked to choose between guilty and non guilty (77% compared 63%); and jurors asked to reach a uncomplicated majority compared with those asked to reach a unanimous verdict (73% compared to 66%).[97]
Figure 5.1: Juror views on the appropriate verdict if they recollect the accused is guilty just the evidence does not show it beyond reasonable doubt
Base: All jurors (n = 969)
The view that not proven should be used when the jury thinks the accused is guilty just that the evidence does not meet the required standard of proof was too voiced during deliberations - 31 such statements were made across fourteen of the 32 3-verdict juries.[98] For instance:
First juror: "Non guilty is completely unlike to not proven."
2nd juror: "Not proven is guilty, just you lot tin't prove it."
Starting time juror: "Not officially."
(Rape trial / three-verdict / 12-person / simple majority)
5.4.2 "Not proven ways you could however be brought back to trial"
Every bit noted above (section 5.1), jurors in the three-verdict juries were told by the judge that "non guilty and not proven accept the same outcome, amortization, which means that the accused cannot be tried again for the same offence". Jurors in the ii-verdict juries did not receive this management.
In fact, the legal position regarding retrial following an acquittal verdict is at present slightly more than complex than this management implies. Since the Double Jeopardy (Scotland) Act 2011 came into forcefulness, the prosecution can apply for permission to re-prosecute following an acquittal, although just in limited circumstances (primarily where either the acquitted person has later on admitted to committing the offence or, in serious cases, where fresh evidence has arisen that substantially strengthens the example against them).[99] Analysis of the deliberations indicated that a modest number of jurors in this written report were aware of these provisions. The important point, nonetheless, is that such an awarding for re-prosecution can be fabricated regardless of whether the verdict is not guilty or not proven. There is thus no difference between the ii acquittal verdicts in relation to the possibility of retrial.
Our mock jurors were much more than likely to recollect that a retrial was possible after a not proven verdict than later on a non guilty i - 41% thought it was definitely or probably true that 'the accused can be tried again' after a not proven verdict compared with 23% who idea the same practical afterwards a not guilty verdict (Figure 5.ii).
Figure 5.2: Jurors' understanding of the not proven and not guilty verdicts' furnishings (% saying statements definitely or probably true)
Base: All jurors (north = 969)
The judge'southward management does, however, appear to improve jurors' understanding of this issue. Jurors in two-verdict juries (who were non directed on this point by the gauge) were much more than likely than those in three-verdict juries (who were directed) to retrieve that the position on retrial was unlike for each acquittal verdict (Figure v.three). This is consistent with the findings of Hope and others, in which jurors who had been directed on the not proven verdict were significantly less likely to believe that the defendant could exist re-tried for the same offence post-obit a not proven verdict.[100] Nevertheless, even in 3-verdict juries, jurors were still more likely to say someone can be retried after a not proven verdict (26%) than after a not guilty verdict (xx%) (Figure 5.3). Some confusion almost the possibility of a retrial with each verdict appears, therefore, to persist. There were no statistically significant differences in views about the possibility of retrial past jury size or by majority required.
Figure 5.3: Juror beliefs well-nigh the possibility of retrial after (a) not proven and (b) not guilty verdicts, by whether they were asked to choose between two or three verdicts
Bases: All jurors - ii-verdict jurors = 484, three-verdict jurors = 485
Whether the accused could exist retried post-obit a not proven verdict was also raised repeatedly during deliberations. In total, 21 statements on this topic were fabricated beyond 12 of the 32 three-verdict juries: 11 expressing the view that this was possible, and x expressing the view that it was not.[101] Jurors' claims that an accused person tin can exist retried following a not proven verdict were not always conspicuously incorrect, given the possibility of retrial under the Double Jeopardy (Scotland) Act 2011. However, in five cases (in five different juries), jurors wrongly claimed that retrial is possible following a non proven verdict, only not post-obit a verdict of not guilty:
"Non proven means that you lot could notwithstanding be brought back to trial again. Non guilty means you can't."
(Rape trial / three-verdict / 12-person / unanimity)
Merely 1 of these five statements was corrected past another juror, but this did non seem to be effective, as the juror who made the original statement went on to limited the incorrect belief again.
All of these statements about not proven and the possibility of retrial occurred in the context of general discussions about not proven's meaning and how information technology might differ from non guilty. In that location were no examples of jurors referring explicitly to the possibility of retrial as a factor that led them to choose one verdict over the other, although it is, of course, possible that this influenced their decision.
five.iv.3 "The eye ground"
When asked which verdict should be used 'when the jurors need to compromise to make up one's mind on a verdict' significantly more jurors selected non proven than non guilty (31% compared to 17%, respectively) (Figure 5.two, above).
The notion of not proven as a 'compromise verdict' besides arose during deliberations, with statements to this effect made in five of the three-verdict juries.[102] All five of these juries ultimately returned a not proven verdict. This view of the not proven verdict was sometimes linked with an expression of relief that the verdict was available every bit a mode of ending deliberations:
" … if you lot didn't have the not proven verdict and you either had to detect him guilty or non guilty then ..."
"We would be hither all week."
(Rape trial / iii-verdict / 12-person / unanimity)
However, there were also examples of jurors describing the not proven verdict every bit a "cop-out", suggesting that it excused the jury from deliberating more than fully or from making a more difficult decision:
" … information technology's a bit of a cop out, rather than people really because things really, really, carefully".
(Rape trial / two-verdict / 12-person / unanimity)
"… almost people get for the middle ground because it's the easiest option and I think the danger of a state of affairs like this, is that because you lot're not 100 per cent certain, which none of u.s.a. are, you're but thinking it's safer just to say not proven …"
(Rape trial / three-verdict / 15-person / simple majority)
5.4.4 "If you've got a not proven for rape on your criminal tape you lot're not working anywhere"
A verdict of non proven is a verdict of acquittal. Information technology would not, therefore, course function of the defendant'due south record of criminal convictions held by the court (which is given to the judge to accept into account in sentencing if the defendant is ever bedevilled of a subsequent offence).
Despite a not proven verdict not being a conviction, it is possible that information nearly it could be disclosed to future employers every bit part of a Protecting Vulnerable Groups (PVG) background check.[103] This could occur if the fact of the not proven verdict has been recorded by the police and is considered by them to exist relevant to the purpose of a PVG check under the relevant legislation (department 47 of the Protection of Vulnerable Groups (Scotland) Human activity 2007). The treatment of the not proven verdict in this way is no different from the not guilty verdict - either could potentially be disclosed every bit part of a PVG check in sure circumstances.
When asked directly (in the post-deliberation questionnaire), mock jurors did not appear to draw whatever significant distinction betwixt non proven and not guilty in terms of their implications for the accused's criminal record. There was no statistically pregnant difference in the (relatively low) proportions of jurors who thought that the defendant would get a criminal record following a not proven compared to a non guilty verdict (11% for not proven vs viii% for not guilty - see Figure 5.2).
This finding sits slightly at odds, withal, with analysis of the content of jury deliberations. Although statements about the effect of a not proven verdict on the defendant'south criminal record were relatively rare, in that location was some prove of misunderstanding. X statements were made on this topic across 5 of the 32 three-verdict juries.[104] Six out of 10 statements implied that a not proven verdict would result in a criminal record, and four that information technology would not. Of the six statements indicating that a not proven verdict would appear on the accused's criminal record, iv could be classed as definitely incorrect - they wrongly stated that if the defendant was tried for a different criminal offence in the future, the jury would be told most the previous not proven verdict.[105] The two other statements referred to the perceived event a not proven verdict might have on subsequent employment. I made cursory reference to possible disclosure of a not proven verdict to potential employers, while the other was a longer passage of give-and-take, starting with the following claim:
"If yous've got a non proven for rape on your criminal record, you're not working anywhere, or you have no life anyway, and then you're going to suffer anyway."
(Rape trial / three-verdict / fifteen-person / unanimity)
This was followed by a debate about whether someone who had received a not proven verdict would accept to disembalm this to future employers. No definitive conclusion was reached and the discussion moved on, with no further reference to this consequence.
This pattern was common across other juries that discussed the perceived implications of not proven for the defendant's 'record' - regardless of whether wrong statements were corrected, the issue did non announced to have whatever bearing on subsequent discussions. Overall then, while at that place is prove that some jurors may mistakenly believe a not proven verdict has different implications to non guilty for the accused's record, this did not appear to be an explicit driver for choosing ane acquittal verdict over another (although once more, information technology is incommunicable to know if individual jurors may have been influenced by this belief simply did not vocalism that during deliberations).
5.4.5 "Not proven means the jury feel that they cannot prove the person is innocent"
The idea that a not proven verdict should exist used when the defendant has not 'proved his innocence' arose in 10 of the 32 iii-verdict juries, with fifteen statements made to this consequence.[106] At that place is, of course, no requirement to 'testify' innocence in legal proceedings, and all juries were directed on this by the trial judge: [107]
"I now deal with some fundamental principles of law that apply in every case. The first is this. Throughout the trial every accused is presumed innocent unless proved guilty. The accused is non required to prove his innocence. Secondly, it's for the Crown to show the guilt of the accused on the charge he faces. If that's non done an acquittal must upshot. The Crown have the burden of proving guilt. Thirdly, the Crown must establish guilt beyond reasonable dubiousness."
Even so, it was apparent that some jurors felt not proven should be used when innocence has not been 'proved':
"[Not proven] ways that the jury feel that they cannot show that the person is innocent, it means that they don't think...they think that in that location has possibly been a rape, merely they don't feel that the evidence is potent plenty."
(Rape trial / 3-verdict / 12-person / elementary majority)
In some instances, jurors distinguished betwixt the not proven and not guilty verdicts in precisely these terms (that is, that not guilty indicates that the accused has proven their innocence, whereas not proven indicates that they have not):
" … the deviation between not proven and not guilty is not guilty is yous believe there is evidence to prove that he is not guilty."
"Only, the outcome is the same."
"The outcome from our perspective is the same."
(Assault trial / three-verdict / 15-person / simple majority)
In the jury quoted to a higher place, this assertion led to a short fence, with another juror disagreeing that the not proven and not guilty verdicts differed in this style. Despite this, the juror who expressed the initial view then repeated information technology, stating that:
"Not guilty is there is evidence to prove that he did not do what they were accused of. Guilty is there is bear witness that tells y'all. Not proven tells you there is no evidence."
(Assault trial / iii-verdict /xv-person / simple bulk)
Discussion then moved on and the indicate was not discussed again (the jury ultimately returned a majority not proven verdict). In two other juries where this view was expressed, other jurors also interjected to disagree and claiming (in both cases referring to the approximate's direction that the accused is innocent until proven guilty), but the point was not discussed further in either example, which makes information technology hard to assess what touch such views had on the verdict these juries returned. However, there were examples where a belief that the defendant had not proved their innocence appeared to be one reason why individual jurors favoured a not proven verdict over one of not guilty:
"I couldn't say he was innocent and let it go, simply I couldn't say he done it, it was right in the heart for me."
(Rape trial / three-verdict / 15-person / unproblematic bulk)
5.four.6 "Yous've got a black mark against you"
A final theme that emerged during deliberations was the perception that in that location is an element of stigma fastened to a non proven verdict. Vii statements were made to this outcome across half-dozen of the 32 three-verdict juries (four in assault trial juries; three in rape trial juries).[108] Information technology was suggested that a not proven verdict means "you lot've got a black marker against you", or that "uncertainty" would be in people'southward minds almost whether the accused was guilty. This perceived 'stigma' was linked with the view (discussed in 5.iv.one) that juries should return a not proven verdict when they think the accused is guilty, but the evidence does non show this beyond reasonable doubt.
"You walk away innocent, merely everybody knows."
(Rape trial / three-verdict / 15-person / simple majority)
In all these cases, it was clear that jurors understood the legal position (that a verdict of not proven is a verdict of acquittal), but that despite this, they felt there would exist a lingering stigma fastened to such a verdict.
Beliefs about the perceived 'stigma' of a not proven verdict were explicitly cited by three jurors equally a reason why they favoured a particular acquittal verdict. All iii were rape trial jurors. Two jurors (in different juries) stated that they supported a not guilty verdict over ane of not proven considering, every bit one put information technology, they were "non prepared to imply someone's committed rape". Conversely, the 3rd juror stated that their selection of not proven was intended to ship a bulletin to the accused that they doubted his story. These views did non appear to influence other jurors - indeed two of the jurors expressing opposing views were on the same jury and neither explicitly stated that they had changed their mind as a result of the other person'southward opinion - but it cannot be ruled out that other jurors were influenced by these statements most stigma without expressly maxim and so.
v.5 Reasons for choosing ane acquittal verdict over the other
Establishing exactly why jurors chose a particular verdict was ofttimes challenging. Jurors did non always requite clear or illuminating reasons for favouring a particular verdict (either in their questionnaire or during deliberations), and those in three-verdict juries almost never explained exactly why they had selected one amortization verdict over the other. However, comparison of jurors' stated reasons for choosing (a) non proven and (b) not guilty (drawing on both questionnaire data[109] and jurors' deliberations) suggests that there are some full general differences in reasons for choosing the two acquittal verdicts.
In summary, jurors choosing the non guilty verdict (where both amortization verdicts were available) tended to justify this in i of two ways:
- The first was that they believed the accused was innocent. This contrasts with jurors who chose the not proven verdict, who tended to justify this on the ground that guilt had not been proved across reasonable incertitude (sometimes accompanied by a belief that the accused was probably guilty, and sometimes by a belief that in that location was non enough evidence to form a view either way).
- The second was that they believed ane or more than of the prosecution witnesses were lying. Once more, this contrasts with those who favoured not proven, who tended to justify this on the basis that they found it difficult to make up one's mind between the truthfulness of the unlike witnesses' accounts.
A more detailed comparison of reasons for choosing non guilty and not proven in each trial shows that jurors who favoured not proven were: [110]
- More likely to refer to the difficulty of choosing betwixt the accounts given past the complainer and the defendant (28% of rape trial jurors who thought the verdict should be not proven, compared to 12% of jurors who thought the verdict should be non guilty; the equivalent figures for the attack trial were 17% vs 6%).
- For the assault trial but, significantly more than likely to refer in general terms to whether there was enough evidence to convict, or to additional testify they felt was needed (for case, lx% of assault trial jurors who thought the verdict should exist not proven cited bereft evidence to convict vs. 41% of assault trial jurors who thought the verdict should be not guilty).
- For the rape trial merely, significantly more likely to refer specifically to whether the example had been proved 'beyond reasonable doubt' (34% of rape trial jurors who idea the verdict should be non proven cited this vs. nineteen% of rape trial jurors who thought the verdict should exist non guilty).
- In the rape trial only, jurors who favoured not proven were less likely to refer to specific elements of the evidence, and tended instead towards more general statements, such as 'not enough testify to convict' (42% of jurors who thought the verdict should be not proven referred to specific elements of the evidence, compared with 65% of jurors who idea the verdict should be not guilty).
(See Addendum J, Tables J.11 - J.thirteen for more detail).
These findings are consistent with discussions during the deliberations, where - among those jurors who expressed a reason for their choice of verdict - there was articulate variation in the kinds of reasons cited past those who chose not proven and those who chose not guilty. Stated reasons for favouring non proven oft reflected jurors' different understandings of non proven discussed above - for example, choosing it because they were not convinced of the accused'south innocence. Jurors besides noted difficulty choosing between the accounts given past the accused and the complainer as a reason for choosing not proven (in both assail and rape trials):
"Well, the thing is if y'all had two children and you had a falling out and you weren't there, which of them would you lot believe? You lot know, if yous had 2 kids and they had a disagreement well-nigh something would you lot say you're guilty, or would yous say I'm non really sure and not proven? I would say, well I wasn't really there so I can't determine which of you, I'm not 100 per cent sure. That'south why I would say too not proven, because I wasn't actually there, I didn't meet what happened."
(Assault trial / iii-verdict / 12-person / unanimity)
"I call back it's very difficult with this because it'southward only i against 1, in that location is no other witnesses. And I hateful it's kind of a ... quite a difficult thing to say which one is innocent or not, I'm finding it difficult. Ane minute we're looking at I was with him, and the side by side infinitesimal I was with her, and I'm finding information technology difficult … I would say not proven, because I'm non sure."
(Rape trial / three-verdict / 15-person / unanimity)
Other jurors linked their choice of a not proven verdict to the corroboration rule. As noted earlier (section four.three.2), all juries were directed that the accused cannot be convicted on i source of evidence alone (in line with the way juries would exist directed in a real Scottish criminal trial). This direction was picked up among jurors choosing a not proven verdict, peculiarly in the rape trial. For example:
"Yep, I'grand going non proven, because I think that [the complainer] is credible and reliable and I believe her testimony, but as the judge said, we demand to have corroboration and I don't think it was across reasonable doubt corroboration."
(Rape trial / 3-verdict / 15-person / unanimity)
A final related theme, which over again was most prominent in the rape trial, was jurors justifying their pick of non proven on the ground that they personally thought the accused was guilty but were not sure of this beyond reasonable doubt. For example:
"I think he was guilty, merely I would probably have to go for a non proven considering I remember the fact that they couldn't bear witness beyond whatever reasonable doubt that she got the bruises from an set on means that actually reluctantly I would probably take to become non proven. Although on the basis of her testimony and his, I definitely believe her."
(Rape trial / three-verdict / fifteen-person / unproblematic majority)
Over again, this is consequent with the finding, discussed in a higher place (section 5.four.ane), that 70% of all jurors believed non proven is the most advisable verdict when jurors think the accused is guilty but that this has not been proved across reasonable doubt.
There was evidence of unease amid some rape trial jurors about choosing the not proven verdict when they believed that the accused was probably guilty. For case, ane juror who idea non proven was the correct verdict even so spoke of the defendant "walking abroad" if he was in fact guilty and found this "difficult". Another, who too supported a not proven verdict on the basis that the case had not been proved beyond reasonable incertitude, withal felt that this verdict was "unfair" to the complainer and could exist seen as "saying that we're sanctioning rape".
five.v.1 Reasons for switching betwixt acquittal verdicts
69 of the 431 jurors (16%) deliberating in three-verdict juries switched between the two acquittal verdicts over the grade of deliberations.[111] This switch was most unremarkably from not guilty to not proven (12% of iii-verdict jurors switched in this direction, with iv% changing from not proven to not guilty).
The scope for analysis of reasons for switching betwixt acquittal verdicts is limited by the low numbers - of the 69 jurors who switched, just 48 gave a reason for doing so in their mail service-deliberation questionnaire.[112] Moreover, the reasons given were not always particularly illuminating - the nearly mutual reason was simply that they had been persuaded by the discussion (67% of jurors who switched between acquittal verdicts and gave a reason for having done and so). Other reasons for switching between amortization verdicts mostly reflected the themes already discussed: jurors' views by the end of deliberation on whether there was enough evidence or proof in general (33%); the perceived reliability and credibility of the complainer (23%) and witness (xix%); and difficulties in choosing betwixt inconsistent accounts or evidence (17%).
There were only five examples of jurors giving an explicit account during deliberations of their reasons for switching between the two acquittal verdicts. Again, their explanations reflected jurors' reasons for favouring non proven or non guilty, discussed above - for instance, condign convinced of the accused'due south innocence (as a reason for switching from non proven to not guilty), or difficulties choosing between the accounts of the accused and the complainer (every bit a reason for switching in the contrary direction).
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Source: https://www.gov.scot/publications/scottish-jury-research-fingings-large-mock-jury-study-2/pages/8/