Friday, 6 March 2009

Doubtful Thinking

In Jersey, as in many other places, a jury may only choose from two possible verdicts, or else invalidate the whole proceedings by refusing to agree any verdict at all.

It is very wise to keep the standard of proof for punishment at guilt beyond all reasonable doubt. The problem is that, at least as the trials are reported, sometimes what is actually established is that the accused is not innocent beyond all reasonable doubt. In Scotland, they have a third verdict for such cases – not proven. The flaw in the Scottish option is that it is a full and unconditional acquittal, not a starting point for a retrial. However, given the options of maybe punishing a victim of a false accusation, or maybe letting a heinous criminal get away with it, one gets the impression that in the privacy of the jury room they occasionally perceive a moral duty to make sure the case sticks to the accused to take precedence over their legal duty to eliminate doubt.

To my untrained layman's mind, it seems that it would be a boon to jurors, if they could bring a not proven verdict, where neither has the prosecution proved their case beyond doubt, nor has the defence convincingly asserted the accused's innocence, but for that not proven verdict to permit the possibility of a retrial, and maybe for the proceedings of the original trial to be admissible evidence at the retrial. This would enable the jury to take a constructive step towards a final resolution of the case, without feeling obliged to make a decision that the evidence that they have heard does not altogether support.

Do I have any lawyers or law graduates amongst my readers? If so, do you think that this is a good idea, something that could be developed into a good idea with expert assistance or just proof beyond all reasonable doubt that laymen should leave law to lawyers?

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