'Not proven' verdict deserves consideration

It was inevitable, after the not-guilty verdict in the mass-coverage Scott Guy murder trial, that there would be calls once again for the Scottish "not proven" option to be introduced for juries here too.

That's not as silly as it might seem, even though a Scottish MP has just launched, for the second time, a bid to get this removed from the Scottish legal options, leaving just the guilty/not-guilty choices available in most of the world.

The reasons for the complaints here over the Ewen Macdonald not-guilty verdict were the same as in other controversial not-guilty jury decisions, such as David Bain's final trial, the death of the Kahui twins and the murder of Hawke's Bay farmer Jack Nicholas in the curious case of the dogs that did not bark.

Supporters of the defendants maintained the verdict proved the accused was innocent and the charges unfounded.

It is not that the juries in these and many other cases found the accused to be innocent, but rather that they declared, in spite of sometimes compelling circumstantial evidence, that the case did not pass the "beyond reasonable doubt" test.

They were saying "not proven beyond reasonable doubt", rather than "innocent of unfounded charges".

Some decades ago, compelling circumstantial evidence in such cases would probably have been enough to secure a conviction.

What seems to have happened in the interim is a worrying public wariness of the police and their methods. The planted cartridge case to assist in a conviction in the Crewe murders trial is one example endlessly revisited.

Then there is the television diet of pulp fiction whodunits, where forensic evidence is produced at the drop of a hat to nail the criminals. Without the magic DNA and other forensics, juries in our real-life courts seem to be becoming more wary and unwilling to convict.

Bring in a star defence lawyer and confusion over boot prints, and in the absence of an eyewitness or forensics, the burden of required proof is just too high. So what prospects here for a third jury option of not proven?

We would not be alone in suggesting it. One United States senator tried to cast his vote this way during the impeachment case against former president Bill Clinton over the Monica Lewinsky scandal, but his votes were recorded as not guilty.

It was raised again after the O Simpson trial result, where many were outraged over his celebrations of innocence after what was regarded as a racially motivated not-guilty outcome.

Interestingly, in 2005, a case was made in the University of Chicago Law Review for "not proven" to be added to US jury options.

Not proven is not without its critics. Sir Walter Scott, once Sheriff in the Court of Selkirk, called it "that bastard verdict".

But it has historic precedent. It was "proven" or "not proven" in Scottish courts until "not guilty" was added in the 1720s.

While Labour members of the Scottish Parliament are trying again to get "not proven" removed from the books, leaving guilty or not guilty, the Law Society of Scotland, in a 2007 report, declared there was no need for change and if anything were to be removed it should be the "not guilty" option.

Not proven is chosen by Scottish juries in one-third of acquittals, and by judges in one-fifth of acquittals.

The right of silence, taken by Macdonald, has raised the ire of the Sensible Sentencing Trust, and would once have raised eyebrows in court, but Macdonald's lawyer argued that his client's testimony was not needed in view of the hours of taped police interviews.

Not relevant in the Macdonald trial, but a procedure which needs to be addressed, is the ban on a jury being told of a defendant's previous convictions.

A jury should know if a sex offender, for example, has a history of serial rape.

In the US, where everything is public, research has shown that juries are quite capable of excluding extraneous matter from their deliberations on a specific case. There is no reason to believe our juries would be any less sophisticated.

The Dominion Post