On the Uniqueness of the Scottish Jury and the "Not Proven" Verdict
From their inception to the present day, juries have served as an important institution in which ordinary individuals are tasked with deciding the fates of fellow citizens in legal proceedings. Juries have been present in European countries at least since the year 1066, and were first used in colonial America in 1630 to decide the culpability of a man accused of the murder of a fellow Mayflower Colonist.
Despite nearly unanimous use in the Western world, the structure, procedure, and abilities of the jury vary greatly. This article will compare two of the world’s most renowned jury systems: the American jury and the Scottish jury. Due to this article’s focus on the role of a jury specifically in a trial, analysis will be centered on trial, or petit, jury systems.
Considered the “keystone of the justice system” in the United States, the right to a trial by jury is a right guaranteed to every citizen by the Constitution. Trial juries in the U.S. are composed of six to 12 people who must come to a unanimous verdict of “guilty” or “not guilty” in a criminal case, or must find for or against the plaintiff in a civil case.
The Scottish trial jury varies greatly from the American format in that it is composed of 15 people who each have one vote in determining liability through a strict majority. Scottish jurors may choose between three verdicts in a criminal trial: guilty, not guilty, or “not proven”. These structural differences have significant effects in how jurors view and approach their role in carrying out justice.
Jury Size
Perhaps the simplest difference between the American and Scottish trial juries is the number of people asked to serve on a jury. While this distinction may seem nominal, the number of people in deliberations may have significant effects on how each juror understands their own position. In October of 2019, the findings of the United Kingdom’s largest mock jury study were published. This study, utilizing more than 900 people, was strictly focused on the unique aspects of Scottish juries. Much the same as the United States, most juries in the United Kingdom are comprised of 12 members. The 2019 study found that jurors who participated in a 15-person jury were less likely to change their opinion on the accused's guilt. Researchers suggested that this outcome was likely resulting from the fact that, in a 15-person jury, more people must be convinced to change their mind in order for the jury to reach a verdict.Thus, there is less incentive for each individual juror to apply full effort in the decision-making process, creating a collective action problem.
Juror participation levels and deliberation length were also evaluated by researchers in the study. In the case of the 15-person jury, researchers found that larger jury size led to jurors being less satisfied with their experience and feeling as though they did not participate as much as they would have liked on average, as there were often dominant jurors who boxed out those who wished to participate. Despite the difference in participation levels between the larger and smaller juries, the study results found no notable difference between the two groups in the average time spent deliberating.
Findings in this study suggest that the larger Scottish juries may cultivate a situation in which jurors are more closely tied to their initial verdict, and one in which less-bold jurors may not feel as comfortable voicing their opinion than they would in a smaller jury much like the ones that we are called to sit on in the United States.
Coupling these findings with the different standards of voting required for a verdict, as we’ll see, leads to an even greater divergence between the two jury systems.
Standards of Majority
For an accused defendant in the United States to be found either guilty or not guilty, the jury must unanimously decide on either verdict. In Scotland, a strict majority is all that is required to arrive at a verdict. In the Scottish system, each juror essentially has one vote whereas American juries engage in a conversation that results in the totality of jurors agreeing on one verdict.
The aforementioned 2019 study, sponsored by the Scottish government, compared the observed outcome between juries asked to come to unanimous verdicts and those asked to arrive at a verdict through a strict majority. The results showed that juries required to be unanimous were more likely to arrive at verdicts resulting in acquittal than juries held to a strict majority standard.
Researchers assert that this result may arise as many jurors in a unanimous jury have to change their initial opinion in order for the jury to return a verdict at all. When jurors change their individual decisions as to what the verdict should be, it is likely that they are more willing to switch from conviction to acquittal than from acquittal to conviction so as not to contribute to a false conviction.
It was also observed that when only a strict majority was required to reach a verdict, jurors were less likely to switch their opinion as there was less motivation to part from the beliefs they had formulated throughout the trial.
The researchers made an additional note: juries operating on the basis of strict majority deliberated for much less time on average than those which had to reach a unanimous decision. Thus, the American jury system may result in more acquittals than the Scottish system as it calls for individual concession and compromise rather than the simple casting of a vote. Additionally, the American system may result in longer periods of deliberation as more discussion among their group is required prior to arriving at a verdict.
The “Not Proven” Verdict
Certainly the most unique aspect of the Scottish jury system is the existence of the “not proven” verdict.
This verdict has a unique history. Juries in Scotland were first tasked with deciding which facts of a case were either proven or not proven by the prosecution. However, juries asserted that in certain cases they had the right to declare the accused as guilty. Eventually, “innocent” and “guilty” became widely accepted as jury verdicts, but the option of “not proven” also remained available to jurors, who were originally tasked with merely deciding whether certain facts were proven
While there is no formal definition of the modern not proven verdict, it is also a verdict of total acquittal in the same way as not guilty. The mock jury study takes an in-depth view at this verdict and found that juries without the not proven option were more likely to return a verdict of guilty. Thus, the not proven verdict can be sometimes understood as merely a bail-out verdict for the accused when the prosecution does not formally prove their case but seemingly has one.
This critique is not unique to this study and the not proven, or “bastard,” verdict is widely viewed as defendant-friendly. The study also found that jurors who sit on a jury returning a not proven verdict often show less satisfaction with the experience of serving on a jury than those who decided on a verdict of guilty or not guilty.
Other measures such as deliberation length were found to not be affected by the existence of the not proven verdict. While many may view the not proven verdict as too friendly to defendants, it may pose a legal advantage. This verdict prevents juries from reaching for a conviction, and allows them to focus more closely on the facts and conclusions that were introduced and proven at trial.
In Closing
With countries such as Japan, Mexico, and South Korea adopting juries as a part of their justice system as recently as the turn of the century, it will be interesting to see what kind of jury systems develop around the world.. These countries will have to choose how many citizens they deem reasonable to decide a fellow citizen’s fate as well as the amount of votes required to return an official verdict.
The stakes here are high and not merely confined to the pages of academic scholarship. As the aforementioned British study has shown, jury composition and rules have clear impacts on the administration of justice in a court of law. The inclusion of the not proven verdict, for instance, reduces the incentive for juries to reach a conclusion, perhaps leading to less wrongful convictions and thus a more accurate penal system. One can only hope that countries with recently-adopted jury systems pay attention to research in the field when developing the rules surrounding the composition and voting procedures imposed upon their own juries. And the U.S. might learn a thing or two from the Scottish jury format as well.
Regardless, implementing a jury system makes the justice system more transparent and can decrease the likelihood of wrongful convictions, according to jury expert Hiroshi Fukurai. And in a world that still battles the evils of totalitarianism, autocracy, and censorship, this is an all-too important achievement in itself.