Over at Fault Lines, Andrew Fleischman has a post about the idea of letting a jury determine actual innocence. It’s an interesting post — worth a read — but when I read the headline I thought of something a bit different.
Criminal defense attorneys complain about the difficulty of getting a jury to understand the degree of proof necessary for a criminal conviction. They often feel that the jury is setting the bar for a Guilty verdict at something less than “beyond a reasonable doubt.”
My thought (and I know it’ snot original) is that maybe the problem is that we only give the jury two choices: Guilty and Not Guilty. It would be natural for them to regard these as equal choices and lean toward a Guilty verdict if they thought that was more likely, which is a problem because “more likely” is a much less strict standard than reasonable doubt.
Perhaps we could obtain a small improvement in criminal justice by offering the jury a few more choices to pick from, such as Guilty, Not Guilty, and Actually Innocence, with only Guilty counting as a conviction. Or maybe we could offer an array of choices in a familiar form:
Please rate your opinion of the defendant’s guilt on the following scale:
5 – Guilty beyond a reasonable doubt.
4 – More likely guilty than innocent.
3 – Unable to tell.
2 – More likely innocent than guilty.
1 – Innocent beyond a reasonable doubt.
The defendant would only be convicted if all members of the jury picked #5. I suspect prosecutors wouldn’t like a procedure like this, although as long as the court imposes an “all fives or no fives” requirement, it would be the exact same standard of proof.
I know I’m not the first one to think of this. In fact, some criminal defense lawyers like to explain the different levels of proof to the jury so they understand just how strict the “beyond a reasonable doubt” standard usually is. Basically, they’re trying to get the jurors to think about the reasonable doubt standard as the highest in a stepped series of levels of proof. So why not make it explicit?
I don’t know if it makes sense to give the other levels any legal significance — e.g. a verdict of “innocent beyond a reasonable doubt” blocking plaintiffs in a civil suit from claiming otherwise. That might be using the verdict for more than it actually establishes.
Anyway, posting here has been light lately, so I just thought I’d throw that out there.
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