In most countries that follow the Anglo-American legal system, the criminal process is based on the existence of only two possible alternative legal outcomes – “guilty” and “not guilty” – at the end of a criminal proceeding. That is, a person is acquitted unless the court finds him to be guilty. In contrast, a small number of legal systems, such as those of Scotland, Italy, and Israel, maintain an additional form of acquittal, situated between the two stated polar options. In this paper we review the criminal systems that have adopted more than one type of acquittal while delving specifically into the case of Israel. From a descriptive perspective, we summarize the history of their acquittal options as well as describe the additional option’s characteristics when compared to full acquittal as well as the epistemic circumstances in which such an outcome is reached. From a normative perspective, we reject incorporation of this additional type of acquittal due to differences in its expressive implications from full acquittal. We articulate our doubts regarding its necessity and constitutionality, which we do while also addressing the difficulties that this type of verdict engenders. Our main contention is that recognition of this type of acquittal, alongside full acquittal, erodes the fundamental premises of criminal law, contradicts its position regarding the defendant’s innocence at the heart of the criminal proceeding, and therefore undermines this proceeding’s normative and moral commitment to the defendant’s basic rights.
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Vincent T. Bugliosi, “Not Guilty and Innocent – The Problem Children of Reasonable Doubt” 4 Crim. Just J. 349 (1981), at 355.
In American justice systems (both federal and state), juries have only two options for reaching a final verdict – “guilty” and “not guilty”. Jurors are consequently instructed to convict a defendant (i.e., find the defendant “guilty”) if the evidence supporting his guilt meets the relevant burden of proof (in a typical criminal proceeding, proof of guilt beyond a reasonable doubt). If the evidence does not reach the level required for conviction, the verdict to be rendered is not guilty. The not guilty verdict can be chosen in situations where the jurors are persuaded of the defendant’s innocence as well as in situations in which they are persuaded that there is insufficient evidence to support guilt. Nevertheless, over the years, the “not proven” category has come to be used on a de facto basis in several cases. Two of these cases are particularly well-known. The first one is the trial for treason of the former vice president, Aaron Burr, held in 1807. At the end of a four-week trial, the jury members were not content with delivering either of the two traditional verdicts. Instead, they declared: “We of the jury say that Aaron Burr is not proved to be guilty under the indictment […]”. Despite the defense attorney’s objection to the verdict’s wording, Chief Justice Marshall let it stand and classified it as a “not guilty” verdict (see: Thomas Fleming, Duel: Alexander Hamilton, Aaron Burr and the Future of America (1999) at 392–393). The second example took place nearly 200 years later. In December 1998, President Bill Clinton faced impeachment in the United States Senate. Rather than voting guilty or not guilty, Republican Senator Arlen Specter announced that the charges against the President were “not proven”. Specter was upset that the Senate refused to allow live testimony and explained his vote by stating: “I do not believe the president is ‘not guilty’. […] I believe that there has been […] a sham trial, and it’s a trial on which you can’t really come to a verdict”; see: Hannah Phalen, “Overcoming the Opposition to a Third Verdict: A Call for Future Research on Alternative Acquittals” 50 Ariz St. L. J. 401 (2018). Aside from these well-known cases, additional cases can be found in which a “not proven” verdict was delivered (Joseph M. Barbato, “Scotland's Bastard Verdict: Intermediacy and the Unique Three-Verdict System” 15 Ind. Int'l & Comp. L. Rev. 543 (2005), at 573–575; Phalen, ibid, pp. 405–406). Thus, for example, in a case heard in the state of Washington, the trial court judge ruled that ‘[m]y judgment here is not a verdict of innocence. It will be a verdict of ‘not proven’ (State v. Bastinelli, 506 p. 2d 854, 857 (Wash. 1973)). In California, two attempts (in 1993 and 2003) were made to enact legislation providing for the “not proven” option in criminal proceedings, but they were unsuccessful. It should be noted that the American Civil Liberties Union (ACLU) as well as a prosecutors’ organization opposed both versions of the proposed legislation (Barbato, ibid., p. 575; Phalen, ibid., p. 405). It is therefore clear that the “not proven” verdict has not officially taken root in the American criminal justice system. Officially, the practice of using only two types of verdicts – conviction or acquittal (guilty or not guilty) – remains in place and is used in the Federal system and in all fifty States.
The Act of Union 1707 between Scotland and England permitted Scotland to retain its separate legal system, which it continued to administer. The Scottish criminal justice system maintains its own court system, its own police forces, its own prosecution service and its own prisons.
Samuel Bray, “Not Proven: Introducing a Third Verdict” 72 U. Chi. L. Rev. 1299 (2005) 1301; Peter Duff, “The Scottish Criminal Jury: A Very Peculiar Institution” 62 Law & Contemp. Probs., 173 (1999), at 193.
J. Irvine Smith, “Criminal Procedure” in Introduction to Scottish Legal History 426 (1958), at 442.
Ibid; Barbato, supra note 2, at pp. 547–548; Ian Douglas Willock, The Origins and Development of the Jury in Scotland (1966) at 219.
A.S. Pringle, `The Verdict of ‘Not Proven’ in Scotland’ 16 Jurid. Rev. 432 (1904) 432–433.
McNicol v. HM Advocate  Scots Law Times 151, 152.
The cited research was the largest of its kind ever undertaken in the UK. See: Rachel Ormston, James Chalmers, Fiona Leverick, Vanessa Munro and Lorraine Murray, “Scottish jury research: Findings from a mock jury study (2019)”. https://www.gov.scot/publications/scottish-jury-research-findings-large-mock-jury-study-2/pages/8/). For other studies conducted in recent years see: M Smithson, S Deady and L Gracik, “Guilty, not guilty, or …? Multiple options in jury verdict choices” (2007) 20 Journal of Behavioral Decision Making 481; L Hope et al., “A third verdict option: Exploring the impact of the not proven verdict on mock juror decision making” (2008) 32 Law and Human Behavior 241; L J Curley et al., “The bastard verdict and its influence on jurors”, (2019) 59 Medicine, Science and the Law 26.
For a discussion and critique of the “not proven” verdict in Scotland, see Lockerbie Trial Briefing Handbook 13 (John P. Grant ed., 1999); William Roughead, Twelve Scots Trials (1913) at 221, and the sources cited there.
Bugliosi, supra note 1, p. 353.
Peter Duff, “The Not Proven Verdict: Jury Mythology and ‘Moral Panics’” 1996 Jurid. Rev. 1, 7. For possible explanations of that data, see Bray, supra n. 4, p. 1315 n. 82.
Bray, supra note 4, p. 1302.
Among other reasons, this is due to the claim that such a verdict increases the rate of acquittals. It is also due to the fact that it negatively labels defendants who have been acquitted. See John Gray Wilson, Not Proven (1960) at 7–8; Bray, supra note 4, p. 1302 n. 16. In the 2019 study, supra note 11, it was argued that where the “not proven” verdict was available, acquitting juries tended to choose not proven rather than not guilty as the means to acquit the accused. Individual jurors were also less-likely to favor a guilty verdict when the not proven verdict was available. In addition, the study’s findings indicated that dismissing a “not proven” verdict may lead to more jurors favoring a guilty verdict, what might lead to an increase guilty verdicts over a larger number of trials. The study’s authors also stressed that it is impossible to estimate the likely scale of such an impact because its effect will vary depending on factors including the balance of evidence and the initial balance of opinion in the jury at each trial.
Duff, supra note 14, pp. 7–12.
Bray, supra note 4, p. 1302.
Ibid, p. 1302 and the sources cited there.
Codice di procedura penale (CPP)
See William T. Pizzi & Luca Marafioti, “The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation” 17 Yale J Int'l L. 1 (1992) 5, 15.
According to para. 129 of the Code, the various types of acquittal are to be delineated in set formulae (formula assolutoria), to be declared at the end of the ruling.
See the decision handed down in Cassazione penale, Sez. Unite, sentenza n. 40049 of 28 October 2008.
Pizzi & Marafioti, supra note 21.
Italy’s Supreme Court handed down such a ruling in two cases: Cass. civ. sez. 4,49580/2014 and Cass. civ. sez. 4,29507/2018.
Cass. civ. sez. 5,19393/2018.
Tar Lazio sentenza n. 10727/2019.
On the distinction made by the court between “full acquittal” and “acquittal due to lack of evidence” with respect to paras. 652–654 of the Code see: Cass. civ. sez. 6, sent. 13 novembre 2013, n. 25538; Cass. civ., sez. lav., 11.2.2011, n. 3376; Cass. 9-3-2010 n. 5676; Cass. 30-10-2007 n. 22883.
The international literature regarding the advisability of introducing an additional type of acquittal pertains mainly to Scottish law; it does not relate to Israeli law, what may be due to linguistic obstacles.
From the middle of the Nineteenth Century through the end of Ottoman control in Palestine, Ottoman legislation had been primarily influenced by the inquisitorial French legal system.
Regarding the British Mandate legal system in general, see Assaf Likhovski, Law and Identity in Mandate Palestine (2006).
The text of which is the following: “Upon the determination of guilt, the court will, by reasoned decision in writing […] decide to acquit the defendant or, if it finds him guilty, to convict him.”
CrimC (Tel Aviv District Court) Attorney General v. Levy (1949, not published], mentioned in CrimA 16/49 Levy v. Attorney General  IsrSC 2, 561, p. 565.
CrimA 20/41 Podamski v. Attorney General  IsrSC 5, 1187, at p. 1196 (emphases added).
As will be cited below.
Yaniv Vaki, Maya Rozenshein, “Doubts and Acquittals: A Doubtful Relationship” David Wiener Book on Criminal Law and Ethics 489 (Dror Arad-Ayalon, Yoram Rabin & Yaniv Vaki, Editors, 2009) (in Hebrew); Doron Menashe, Eyal Gruner, “The Categorization of Acquittal: Absolute Acquittal vs Doubtful Acquittal – Reconsideration” 27(1) Bar-Ilan Law Studies 7 (2011) (in Hebrew); Micha Lindenstrauss, Beyond A Reasonable Doubt – Selected Issues (second edition, 2009) (in Hebrew).
CrimA 1382/00 Ben Aruyo v. State of Israel  IsrSC 56(4) 714, at p. 719: “An ‘absolute’ acquittal […] is based primarily on a positive determination that the defendant has not committed a crime. In contrast, a doubtful acquittal or a ‘technical’ acquittal [is characterized by] the absence of an affirmative determination that the defendant has not committed a crime […]”; see also CrimA 960/99 Macmillan v. State of Israel  IsrSC 53(4) 294, p. 303-305.
CrimA 4466/98 Davash v. State of Israel  IsrSC 56(3) 73, p. 98.
See for example CrimA 6052/97 Binyaminov v. State of Israel (6 April 1998).
CrimA 892/07 Grandivski v. State of Israel (26 May 2009), per Justice Elon, para. 34.
See CrimA 347/88 Demjanuk v. State of Israel  IsrSC 47(4) 221, p. 644.
CrimA 7653/11 Yad’an v. State of Israel, per Justice Rubinstein, para. 15 (26 July 2012).
See for example CrimA 302/02 Hamadan v. State of Israel  IsrSC 57(2) 550, p. 558. In that case, Justice Rivlin held that for the purpose of Sec. 80 of Israel’s Penal Code, “[t]here is no doubt that the manner in which the process is concluded, and the reasons for the defendant’s acquittal, could have significance for the purpose of determining the ‘justification’ of the compensation and indemnification.”
In Davash, supra note 38, p. 131, Justice Dorner noted that “[t]he proper standard for payment of legal expenses and compensation to defendants who were acquitted at trial is the type of acquittal . . . whether it was doubt-based, or absolute.” See also CrimA 7115/04 Ben Baruch v. State of Israel (2 May 2007); CrimA 12003/05 Hamoda v. State of Israel (18 September 2008); CrimA 5923/07 Shatiyawi v. State of Israel (6 April 2009), para. 25. In that case, Justice Arbel expressly held that when the acquittal is due to doubt, it “can reduce the appellant’s potential for receiving compensation.”
LCrimA 1703/96 Doe v. State of Israel  51(4) IsrSC 708, p. 711.
LCrimA 1703/96 Hamadan v. Government of Israel  IsrSC 59(4) 134.
HCJ 13/57 Tzimukin v. Civil Servant Disciplinary Tribunal  IsrSC 13 856, pp. 861–862.
Labor Case (Haifa District) 1759/02 Raba v. Bank Merchantile Discount Ltd. (1 August 2007).
It appears that Supreme Court President Aharon Barak was referring to this type of doubt in FHCrim 4342/97 State of Israel v. El Abid  51(1) 736, p. 859: “There are times when the fact that there is equivocation regarding the presence of a reasonable doubt itself creates a reasonable doubt and leads to the defendant’s doubt-based acquittal”.
See CrimA 10049/03 Anonymous v. State of Israel  IsrSC 59(1) 385, 405, per Justice Joubran: “I acknowledge and will not deny that it was difficult to make a decision in the case here […] If this were a civil case, it would be appropriate to reject the appeal without hesitation, but the appellant has succeeded in eroding to some degree the evidence that the State had presented against him. And in these circumstances, there is no choice, in my view, other than to acquit him because of doubt”.
CrimA 1787/98 Farida v. State of Israel (20 August 1998).
CrimA 7480/01 Hason v. State of Israel (28 November 2002).
See for example CrimA 3059/03 Glovovich v. State of Israel  IsrSC 58(1) 654, 672, per Justice Heshin: “When the set of facts presents a tie […], the appellant should be acquitted because of doubt”; see also CrimA 528/76 Chelnik v. State of Israel  IsrSC 31(3) 701, 707, per Justice Asher: “If the court is not willing to come to an unequivocal conclusion in either direction, for reasons that have been proven before it, it must acquit the defendant because of doubt”.
See: RCrimA 1568/99 Gilad v. State of Israel (25 May 1999); RCrimA 89/89 Asher v. State of Israel (8 August 1989); In HCJ 6541/07 Schwartz v. Magistrates Court, Tiberias (2 Oct. 2007), the HCJ rejected a woman’s petition to nullify her doubt-based acquittal regarding a crime of assault and to order that a verdict of full acquittal be handed down. In addition, in MH 7420/03 Dagan v. State of Israel (9 Sept. 2003), it was ruled that the Court will not grant a retrial if the defendant acquitted on the basis of doubt.
Yad’an, supra note 42, per Justice Hendel, para. 3 (emphases in the original).
Bray, supra note 4, p. 1304.
Paul H. Robinson & Michael T. Cahill, Law Without Justice: Why Criminal Law Doesn't Give People What They Deserve (2006) at 210.
Richard E. Myers II, “Requiring a Jury Vote of Censure to Convict” 88 N. C. L. Rev. (2009) at 137.
Andrew D. Leipold, “The Problem of the Innocent, Acquitted Defendant” 94 Nw. U. L. Rev. 1297 (2000).
CrimA 3751/11 Abu Tarash v. State of Israel (2 September 2012), per Justice Rubinstein, at para. E.
See for example HCJ 320/96 German v. the Herzliya Municipal Council, PD 52(2) 222 (1998).
See the decision handed down by the Regional Administrative Court of Lazio (Province of Rome), Tar Lazio sentenza n.10727/2019.
IB (District Court of Haifa) 1759/02 Rabaah v. Mercantile Discount Bank Ltd. (8 Jan. 2007). See also Doron Menashe and Eyal Gruner, “The Categorization of Acquittal: Absolute Acquittal vs Doubtful Acquittal – Reconsideration”, 27(1) Bar-Ilan Law Studies 7, 14 (2011). In this article, the authors focus on the fact that doubt-based acquittal may be used as evidence against the accused in administrative proceeding, as well as evidence against her in reaching a decision regarding her dismissal. See also paras. 652–654, the Italian Procedural Code, supra n. 20.
This conclusion confirms Allen’s model of a narrative: see Ronald J. Allen, “The Narrative Fallacy, the Relative Plausibility Theory, and a Theory of the Trial” 3 Int'l Commentary on Evidence, no. 5 (2005).
See Laurence H. Tribe, “Trial by Mathematics: Precision and Ritual in the Legal Process” 84 Harv. L. Rev. 1329 (1971) at 1370–1371: “That presumption, as I have suggested elsewhere, ‘represents far more than a rule of evidence’ […] That presumption retains force not as a factual judgment, but as a normative one – as a judgment that society ought to speak of accused men as innocent, and treat them as innocent until they have been properly convicted […] The suspicion that many are in fact guilty need not undermine this normative conclusion or its symbolic expression”.
Regarding the nature of the right to due process in general, see Stefan Trechsel, “Why Must Trials Be Fair?” 31 Israel Law Review 94 (1997).
For a discussion on the presumption of innocence and its relationship to the level of proof of “beyond a reasonable doubt”, see: David Hamer, ‘Presumptions, standards and burdens: managing the cost of error’, 13(3–4) Law Probability and Risk 221 (2014); Steve Sheppard, ‘The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof Have Weakened the Presumption of Innocence’, 78 Notre Dame L. Rev. 1165, 1195 (2003); Yaniv Vaki, Beyond A Reasonable Doubt – The Flexible Principle of Proof in Israeli Law (2013) (in Hebrew); Barton L. Ingraham, “The Right of Silence, The Presumption of Innocence, the Burden of Proof, and a Modest Proposal: A Reply to O’Reilly”, 86 J. Crim. L. & Criminology 559 (1996); William S. Laufer, ‘The Rhetoric of Innocence’, 70 Wash. L. Rev. 329, 340–341 (1995).
Federico Picinali, Innocence and Burdens of Proof in English Criminal Law, 13(3–4) Law Probability and Risk, 243 (2014).
Lord Devlin: “Trial by jury is not an instrument of getting at the truth; it is a process designed to make it as sure as possible that no innocent man is convicted” cited in Sir Richard Eggleston, “Sixth Wilfred Fullagar Memorial Lecture ‘Beyond Reasonable Doubt’”, 4 Monash U. L. Rev. 1 (1977) p. 22.
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Yaniv Vaki, a Doctor of Law, is Director of the Appeals Department in Israel’s Office of the State Attorney, and a lecturer at the Haim Striks School of Law, the College of Management Academic Studies. Yoram Rabin, a Professor of Law, is President of the College of Management Academic Studies, Israel. e-mail: firstname.lastname@example.org; email@example.com.
The authors would like to thank Prof. Orna Ben-Naftali and Prof. Shachar Eldar for their excellent comments. Unless stated otherwise, all materials in Hebrew have been translated by the authors.
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Vaki, Y., Rabin, Y. TWO KINDS OF ACQUITTALS – DIFFERENT KINDS OF DOUBTS. Crim Law Forum 32, 97–123 (2021). https://doi.org/10.1007/s10609-020-09407-9