At HERC we publish blog articles covering a wide range of issues that broadly relate to harm, evidence, crime and justice. In keeping with the critical position of HERC, our aim is to highlight all sides of the debate and to facilitate a discussion so that all voices are heard on the issue.
In this article Lee John Curley highlights the key differences within the Anglo-American justice model and difference across other international justice models. Lee John Curley is a lecturer in Psychology at The Open University.
The Anglo-American verdict system has become the norm in popular culture representations of jury’s and the courtroom. The dichotomous verdict system of ‘guilty’ and ‘not guilty’ is so widely known that it often surprises people to learn that other jurisdictions have different legal systems that differ in relation to the prosecutions role and the verdict options available to the jury. Further the adversarial system (where two parties present their side of the case to the jury) is just one method of justice, with many European countries favouring the inquisitorial system (where the court, or elements of it, is involved in fact finding). The aim of this article is to briefly describe some of the different verdict options and methods of justice employed around the world. I would also urge psychologists and criminologists to utilise these natural differences in jurisdictions for future research enquiries, as alternative methods of practice may help to aid how decisions are made in the Anglo-American courtroom.
Different verdict systems
In Spain and Russia, juries are provided with a list of questions surrounding the guilt of a defendant. For instance, Spanish judges pose a list of propositions, some for and against the defendant, and the jury indicates to the court whether or not each of these propositions have been proven or not proven. The jury must then confirm or deny “the proof of the defendants guilt” (p.249). If guilt is proven on at least one of the charges, the jury can ask for a suspension of sentence or amnesty. In Russia, however, juries are only asked three basic questions: 1) whether the circumstances surrounding a crime have been proven; 2) is the defendant proven to be the perpetrator; 3) is the defendant guilty of the crime. These systems allow jurors to decide on the credibility and reliability of each piece of information in a case in a more explicit manner than the Anglo-American verdict system.
Even the verdict systems within the United Kingdom’s vary, as jurors in Scotland have three verdicts available to them in a criminal trial: 1) guilty; 2) not guilty; 3) not proven. Guilty and not guilty verdicts are used in the same manner as their counterparts in England and Wales, and America. The ‘not proven’ verdict, however, is a distinctive feature of the Scottish criminal justice system and is as unique to Scotland as the Loch Ness monster and Iron Bru. This verdict is a secondary acquittal verdict and has the same legal applications as the ‘not guilty’ verdict. However, the ‘not proven’ verdict has not been clearly legally defined, which has led to three empirical investigations being conducted on how the introduction of this verdict influences the usage of ‘guilty’ and ‘not guilty’ verdicts (See Curley, Maclean, Murray & Brown, 2019; Hope, Greene, Memon, Gavisk, & Houston, 2008; Smithson, Deady, & Gracik, 2007). All of these studies found that the introduction of the ‘not proven’ verdict does not decrease the number of guilty verdicts given, but does decrease the amount of ‘not guilty’ verdicts given.
These results may highlight that the adversarial system naturally creates doubt in the minds of the jury surrounding the innocence of the defendant, and that this doubt may cause jurors to favour the ‘not proven’ verdict over the ‘not guilty’ verdict when the prosecution has not proven their case adequately enough. In the Scottish system, proof of guilt is perceived in a more realistic way, with the ‘not proven’ verdict introducing doubt into how guilt is perceived. The ‘not proven’ verdict also makes the ‘not guilty’ verdict a more clear verdict, even if it is not the intention behind the verdict, as the availability of the ‘not proven’ verdict highlights that a jury that selects the ‘not guilty’ verdict believed the person to be truly innocent. If the ‘not proven’ verdict is not available, however, it is unclear why a ‘not guilty’ verdict is given, as the verdict could be given if the accused was believed to be innocent by the jury and/or if the Crown did not prove their case. Although it is not a legal requirement to know why an acquittal verdict is given, because of contempt of court and because thelegal burden rests upon the Crown, the information that the ‘not proven’ verdict communicates to the courtroom should be utilised more. For instance, it should be used to help judges decide on a sentence if the accused is given a guilty verdict for similar charges in a future court, or it could be taken into account when individuals who are given said verdict are applying for a PVG check (the Scottish version of the disclosure and barring service check in England and Wales).
Nevertheless, the not proven verdict currently finds itself in the dock, with recent calls for its abolishment in Scotland due to claims that the verdict decreases the chances of rape victims attaining justice in criminal trials. Furthermore, more research is needed to test how the not proven verdict is used in criminal cases before said verdict is implemented in other jurisdictions.
Even stranger to the legal layperson is the inquisitorial system. In the inquisitorial system, judges (maybe plural depending on the jurisdiction and crime) are involved in a fact-finding mission where they may interview several legal actors (e.g., defence, prosecutors, and witness) to arrive at the “’correct’ outcome of the case”. This system is commonly used in European countries (e.g., France). In this system, the prosecution does not have a “burden of proof”, and truth does not arise from two competing standpoints presenting a case to a neutral group (a jury); rather, truth arises from investigating the evidence in a case. The trial then is not conducted to provide evidence to a jury, but to allow the judge(s) the opportunity to investigate how accurate the prosecution’s case is. The defences involvement in an inquisitorial trial involves trying to create doubt in relation to how the judge(s) perceive(s) the prosecution’s case.
The extent to which the inquisitorial system, and its use of judges, leads to more accurate legal outcomes is unknown, and research from psychology generally suggests that there is a contradiction to expertise, with experts utilising more biased means of evidence evaluation and judgment than novices. Further, a classic jury study by Kalven and Zeisel found that juries and judges agreed with another on the verdict given a substantial amount of the time; although this study was conducted in the adversarial system. Nevertheless, future research should be conducted to assess if one system (inquisitorial vs. adversarial) is more efficient/accurate than the other.
The aim of this article has been to highlight that the courtroom is a subjective world that is conducted in different methods and has different permutations within each of said methods. Each system has positives and negatives, and psychological research has not fully investigated how different legal environments (three vs. two verdicts; inquisitorial vs. adversarial) influences the mind of the decision maker when they are faced with a judgment surrounding the guilt of a defendant. Future research should investigate this more thoroughly to assess if the Anglo-American system can utilise different aspects of various legal systems to positively influence the outcomes reached by juries.
Curley, L. J., MacLean, R., Murray, J., Laybourn, P., & Brown, D. (2019). The bastard verdict and its influence on jurors. Medicine, Science and the Law, 59(1), 26-35.
Hope, L., Greene, E., Memon, A., Gavisk, M., & Houston, K. (2008). A third verdict option: Exploring the impact of the not proven verdict on mock juror decision making. Law and human behavior, 32(3), 241-252.
Smithson, M., Deady, S., & Gracik, L. (2007). Guilty, not guilty, or…? Multiple options in jury verdict choices. Journal of Behavioral Decision Making, 20(5), 481-498.