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Proof and Truth

Dr Lee Curley & Dr James Munro

In this guest post our colleagues from the OU Psychology Department discuss their new research findings regarding attitudes to the Scottish jury system and illustrate the value of interdisciplinary approaches to legal research.

Dr Lee Curley is a lecturer in the School of Counselling and Psychology. His expertise centre on decision making and biases, and he has mostly applied this knowledge to a legal and forensic setting.

Dr James Munro is the lead technician in Psychology at the Open University department of Psychology and Counselling. He has a background in cognitive neuroscience, but is now working on research into what impacts the decisions humans make.

In our recently published paper, we, and our colleagues Lara Frumkin and Jim Turner, surveyed Scottish legal professionals for their views on three unique aspects of the Scottish legal system. This was conducted as the Scottish Government is in the middle of considering reforms to the current jury system in Scotland. Jurors in Scotland, unlike jurors in the rest of the UK (we will refer to this as the Anglo-American system), can give one of three verdicts: guilty; not guilty and not proven. Despite previous juror simulation research being conducted comparing the Scottish three-verdict system with the Anglo-American two-verdict system, no research that we are aware of has investigated, exclusively, the views and attitudes of Scottish legal professionals on their preferred system. We hoped to rectify this with the current research.

The legal professionals in our study were asked to rate their attitudes towards the Scottish ‘not proven’ verdict, and to justify why it should be kept or removed. The not proven verdict is unique to Scotland and exists as a non-defined acquittal verdict with the same legal consequences as a not guilty verdict. Our participants strongly supported keeping the verdict, and the most common defence of the verdict was that it ‘better reflects the purpose of court’ (a focus on proof rather than truth). In a separate question, we asked our participants which they would prefer: The current Anglo-American system of guilty or not guilty; the current Scottish system which adds not proven as an option; or a fictional proven or not proven system. Proven or not proven was the most popular response. Taken together, these findings expose a clear preference for a binary system of proven or not proven amongst Scottish legal professionals. Why?

One reason may be that verdicts such as proven and not proven direct jurors towards their ‘true’ purpose (to make a decision on whether or not a crime can be proven beyond reasonable doubt). Verdicts such as guilty and not guilty are misleading to legal laypersons, as they suggest a truth to legal judgements that was never intended by legal professionals. Yes, to legal professionals, guilty verdicts only mean that the prosecution proved their case beyond reasonable doubt, and, yes, not guilty verdicts simply mean that the prosecution has failed to prove their case beyond reasonable doubt. However, jurors, and the general public, may view such verdicts to mean that the accused has been proven to be factually guilty or innocent. Furthermore, guilty and not guilty verdict systems may suggest truth to the jury and the general public, whereas verdict systems of proven and not proven may simply suggest that enough evidence has been provided to show proof (or not) of a particular claim.

Such ideas of proof and truth also interlink with morality and disposition versus criminal acts. An accused individual that has been given a not guilty verdict is suggested to be innocent, and thus moral in regards to their relationship with the crime. Conversely, when a not proven verdict is given, no ideas on disposition or morality are brought into question, it simply shows that a criminal act has not been proven beyond reasonable doubt.  An accused individual that has been given a guilty verdict may be seen by some members of the public to have a guilty disposition rather than just being guilty of particular act. Indeed, courts are very careful with admitting character evidence lest the jury believe the character of the accused is significant piece of evidence.   However, if a theoretical proven verdict was given, no conclusions about the disposition of the accused can arise, only that the Crown has proven their case. For example, if a person steals from a shop, with a guilty verdict, they may be labelled as a shoplifter by the media, whereas if a proven verdict system existed, the focus would be more on that an act of shoplifting had been proven. The sociolinguistics relating to the public perception of guilty and not guilty is important here.

A couple of centuries ago, Scotland used a proven and not proven system. Juries decided the state of the evidence, and after receiving their verdict the judge would stamp the label of guilty or not guilty (respective to the jury decision) on the accused. Perhaps a return to this system would satisfy all.

We would be most interested in hearing the thoughts of readers of the Open Justice Blog on this crucial element of the public understanding of law.

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