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The unique Scottish legal system stands apart from the better-known Anglo-American legal system, with variations relating to jury size (15 vs. 12), the number of verdicts available (3 vs. 2) and majority size (simple majority vs. unanimous). At present, only a handful of investigations have explored the effects of the Scottish ‘not proven’ verdict on jurors, and only a single study has explored the combined impact of the unique elements of the Scottish legal system on juror and jury decision making. The current study is the first to investigate the views of Scottish legal professionals on the three-verdict system, 15-person jury and simple majority verdict system. The aim of the study is to inform public and political debate, involve legal stakeholders in policy changes and decision making and compare legal professionals’ views with findings from previously conducted juror studies. Seventy-eight legal professionals took part in an online survey which asked for ratings and open responses on their attitudes to the Scottish (a) three-verdict system, (b) 15-person jury and (c) simple majority system. The results highlighted strong positive attitudes towards the ‘not proven’ verdict (particularly in a binary-verdict system of proven and not proven), 15-person juries and both the simple and qualified majority verdict systems. There was minimal support for reform towards an Anglo-American system. Instead, the reforms preferred by the legal professionals would be to require a qualified majority of 12/15 jurors, and to use a binary-verdict system of proven and not proven.
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Running head: Scottish Law and Legal Attitudes
Informing Reform: The views of legal professionals on the unique aspects
of Scottish Law
Lee John Curley1*, James Munro1, Lara A. Frumkin1, Jim Turner1
1. Faculty of Arts and Social Sciences, School of Psychology and Counselling, the
Open University, Milton Keynes, United Kingdom.
Word count: 5937.
*For author enquiries please contact Dr Lee John Curley, at the Faculty of Arts and Social
Sciences, School of Psychology and Counselling, the Open University, Milton Keynes, United
Kingdom Email: Lee.Curley@open.ac.uk.
Abstract
The unique Scottish legal system stands apart from the better-known Anglo-American legal
system, with variations relating to jury size (15 vs. 12), the number of verdicts available (3 vs.
2), and majority size (simple majority vs. unanimous). At present only a handful of
investigations have explored the effects of the Scottish not proven verdict on jurors, and only
a single study has explored the combined impact of the unique elements of the Scottish legal
system on juror and jury decision making. The current study is the first to investigate the views
of Scottish legal professionals on the three-verdict system, 15-person jury and simple majority
verdict system. The aim of the study is to inform public and political debate, involve legal
stakeholders in policy changes and decision making, and to compare legal professionals’ views
with findings from previously conducted juror studies. Seventy-eight legal professionals took
part in an online survey which asked for ratings and open-responses on their attitudes to the
Scottish: 1) three-verdict system; 2) 15-person jury; and 3) simple majority system. The results
highlighted strong positive attitudes towards the not proven verdict (particularly in a binary
verdict system of proven and not proven), 15-person juries and both the simple and qualified
majority verdict systems. There was minimal support for reform towards an Anglo-American
system, instead the reforms preferred by the legal professionals would be to require a qualified
majority of 12/15 jurors, and to use a binary verdict system of proven and not proven.
Keywords: Not proven verdict; 15-person jury; Qualified majority verdict system; Simple
majority verdict system; Scottish legal system; Advocate attitudes.
Informing Reform: The views of legal professionals on the unique aspects
of Scottish Law.
Scotland has a unique legal system in regard to juries. Unlike the rest of the UK, or countries
such as the USA, that have two verdicts available to jurors (i.e. ‘guilty’ and ‘not guilty’),
Scotland has three verdicts1. Juries in Scotland can give verdicts of ‘guilty’, ‘not guilty’ or ‘not
proven’. The not proven verdict functions as an acquittal, although it has never been legally
defined1. Despite this, jurors are told that individuals who are given a not proven verdict are
acquitted in the same manner as a not guilty verdict. Juries in Scotland are made up of 15 jurors
rather than the 12 found in other legal systems based on the English model2. Juries in Scotland
do not need to reach a unanimous verdict, or even a qualified majority (10 jurors in agreement);
rather a decision can be given by a simple majority of jurors (8 of 15) agreeing on the same
verdict2.
The aim of the current study, the first of its kind in Scotland, is to investigate legal
professionals’ attitudes to each of these specific jury factors. Legal professionals in Scotland
encounter the unique elements of the Scottish legal regularly, often over a period of years or
decades and witness hundreds of jurors engage with the unique aspects mentioned above. There
is no other group of individuals who have more exposure to the elements discussed in the
current paper. Therefore, we investigated Scottish legal professionals’ views in order to: 1)
inform public and political debate; 2) involve legal stakeholders in policy changes and decision
making; 3) compare legal professionals views with findings from previously conducted juror
studies.
In recent years, each of the factors mentioned have faced public scrutiny. For example, there
have been suggestions that the not proven verdict may decrease convictions and increase the
chances of truly guilty individuals of being acquitted3. A campaign for the removal of the not
proven verdict has been led by Miss M, an activist against the not proven verdict, as said verdict
is used more frequently in rape trials than other criminal trials3. Indeed, the not proven verdict
has been scrutinised for almost 200 years, with Sir Walter Scott naming it ‘the bastard verdict’4.
Despite Scottish jurisprudence having such differences from other (more extensively
researched) legal systems for centuries, and the efficacy of the not proven verdict being debated
for almost as long, only recently have academics begun investigating how the unique factors
of Scottish law may affect juror and jury decision making. The first experimental paper
considering them was published in 20075, 180 years after Sir Walter Scott’s critical epithet was
bestowed.
Four published studies have empirically investigated the effect that the availability of the not
proven verdict has on juror/jury decision making. Smithson et al.5 used a case vignette method
in which participants acting as jurors were required to give decisions using a two-verdict (guilty
vs not guilty) and three-verdict (including not proven) system. Their main finding was that the
availability of the not proven verdict reduced the proportion of not guilty verdicts, without
significantly affecting the proportion of guilty verdicts. Hope, Greene, Memon, Gavisk, and
Houston6 conducted two experiments comparing the two versus three-verdict system and also
found that the availability of the not proven verdict reduced the proportion of not guilty
verdicts. The former findings indicate a small shift from guilty to not proven in ambiguous
trials, that jurors were more confident in their verdicts in the three-verdict system and that 92%
of jurors incorrectly believed that someone acquitted by a not proven verdict would be treated
differently than someone acquitted by a not guilty verdict. Similarly, Curley, MacLean,
Murray, Laybourn and Brown7 found that jurors were significantly less likely to give a not
guilty verdict in the three-verdict condition in comparison to the two-verdict condition, and the
guilty verdict frequency was not significantly affected by the availability of the not proven
verdict. Their findings suggest that jurors interpreted the not proven verdict to mean the
evidence is not convincing enough to say guilty, but I don’t think they are innocent”.
Finally, Ormston et al.2 conducted a multifactorial experiment, looking not only at verdict
system (two vs. three) but also at jury size (15 vs. 12 jurors) and majority size (simple vs.
unanimous). Jurors were presented with video vignettes (either rape or non-sexual assault) and
gave individual verdicts before deliberating, group verdicts after deliberating, and individual
verdicts following deliberation. Jurors gave significantly fewer guilty verdicts in the three-
verdict system than in the two-verdict system (this finding only existed in non-sexual assault),
which is in contrast to the findings of the studies outlined above. In acquittals, jurors were
found to favour the not proven verdict over the not guilty verdict. Jurors in 12-person juries
were found to participate more in jury deliberations, they were more likely to change their mind
about a chosen verdict and were significantly less likely (post-deliberation) to favour a guilty
verdict than jurors in 15-person juries. Jurors in the simple majority verdict condition were
significantly more likely to give a guilty verdict in comparison to jurors in the unanimous
verdict condition, although this effect was only significant at the post-deliberation stage. Juries
in the unanimous verdict condition also took longer to deliberate than juries in the simple
majority condition. Furthermore, jurors who had two verdicts available participated in a 15-
person jury, and could give a simple majority verdict were the most likely group to favour a
guilty verdict post-deliberation, and jurors who were able to give one of three verdicts, based
on a unanimous decision in a 12-person jury were the group least likely to give a guilty verdict
post-deliberation.
In summary, the studies outlined above have all highlighted that the legal structure of the jury
system influences how jurors and juries make decisions2. There is evidence that legal structures
(e.g. verdict system) can interact with crime types to influence verdict choice6, and that the
unique aspects of Scottish trials may interact with each other to affect verdicts. However, a
limitation of these studies for informing policy is that they do not highlight the legal value of
increasing or decreasing the frequency of guilty/not guilty verdicts.
Legal stakeholders have the expertise and experience required to give an informed perspective
on the impacts of changes in frequency of different verdicts. Their careers are built on
understanding the checks and balances of the Scottish system that maximise the fairness of
trials and minimise the possibility of miscarriages of justice. These elements will be tested
through questions on reform and on methods of bias reduction and juror participation. Legal
professionals may be involved in hundreds of jury trials over their careers, whereas most jurors
encounter only one. Any changes to the system that might alter the frequency at which juries
deliver particular verdicts are changes that should be interpreted alongside the attitudes of legal
professionals, to gain insight into whether or not these changes are positive or negative. They
will be aware of changes to policy that may be seen to favour convictions or acquittals, and
will have informed perspectives on whether either side of the Scottish adversarial system has
an easier path during a trial than the other. Opinions from other groups (e.g. complainants,
accused individuals, policy makers) should also be collected. However, due to the unique
experience and knowledge that Scottish legal professionals have in the Scottish legal system,
the current study will focus on their insights, as they are likely to give important context to the
findings of previous experimental juror studies.
Policy recommendations regarding juror decision making should also not be based on
experimental simulations alone 8. Simulations have poor ecological validity (experimental
materials do not replicate real life court processes) as mock jurors are presented with evidence
through a screen, rather than witnessing the evidence themselves in court 8. Legal professionals
are, therefore, sceptical about how far findings from simulation studies apply to a real-world
jury context 8. Krauss and Lieberman 8, consequently, suggest that researchers interested in
juror decision making should utilise a number of methods, each with their own strengths and
weaknesses, in an attempt to give more holistic conclusions regarding how jurors make
decisions. For example, juror simulations lack ecological validity, but do have strong internal
control, whereas legal professionals have years of experience in relation to the legal system in
Scotland and can aid with defining currently un-defined verdicts, but their views will be biased
by their own attitudes. If similar recommendations can be made through different methods, and
findings cannot potentially be explained by the limitations of one methods weaknesses alone,
then policy makers will have a more nuanced and sophisticated understanding of what policy
reforms should take place8.
Current Study
As researchers have focussed on experimental studies of juror/jury decision making, the views
of legal professionals on the not proven verdict, the 15-person jury system and the simple
majority verdict are absent from the academic literature. The current paper aims to address this
by investigating how Scottish legal professionals view these three factors and by seeking
guidance from said professionals on potential areas of reform. The research team sought to
determine: 1) whether legal professionals view the availability of the not proven verdict as a
positive or negative influence in the jury system; 2) whether or not legal professionals have a
preference for a particular jury size (15 vs. 12); 3) how legal professionals view the role of the
juror majority size in how it influences jurors and juries; and, 4) what suggestions they may
have in regards to potential ways to reform the current Scottish jury system. Understanding
legal professionals’ perceptions of each of the three factors discussed and their suggestions for
potential reform is important for two main reasons. First, the information will provide legal
value and insight to the findings of previous juror research2. Second, potential policy changes
to the Scottish jury system should take legal experience into account, and the current research
will provide a bridge between legal professionals and policy makers. The current study has
three main aims:
1. To inform debate surrounding each of the three main factors in this study.
2. To include the voice of legal stakeholders in academic research and potential
policy change.
3. To draw on the expertise of legal professionals who work on real cases, to see
if their views reflect the findings of controlled experimental studies.
Method
Design
An online survey was used to collect quantitative and qualitative (i.e. free-text) data on the
attitudes of legal professionals in Scotland to the three-verdict system, 15-person jury, and
simple majority verdict system. The survey also asked about specific verdicts which are
present in two-verdict systems, and alternatives that are not currently used. The study
received ethical approval from the Open University’s Human Research Ethics Committee
(reference HREC/3554).
Participants
Participants were recruited through the Faculty of Advocates and Scottish Legal News, and
via Twitter directed to specific Scottish legal bodies. There were 78 participants (35
females, 43 males), aged between 24 and 76 years (M = 48.28; SD = 12.88) who submitted
data; there are approximately 11,000 legal professionals in Scotland9. Participants self-defined
their ethnicity as White British/Scottish (70), White other (5) and Asian (3). Scotland’s ethnic
makeup is 96% white and 2.6% Asian10.
Twenty-one participants identified as solicitors, 16 as advocates, and 22 as procurator fiscals.
The remaining 15 participants identified as one of the following: Trainee; Judge; Sheriff;
Solicitor Advocate; Non-Practicing Solicitor; Lawyer; Solicitor Advocate Judge. Four
individuals did not identify their specific role within the legal system. Years of experience with
the Scottish legal system ranged from 1 to 55 (M= 23.38; SD = 13.06).
Materials
The questionnaire had five sections: general demographics/legal experience; the not proven
verdict; 15-person juries; simple/majority verdict systems; and the general Scottish legal
system. With the exception of the demographics section, all questions used a combination of
forced-choice, open-ended (free text) and 10-point Likert-type scale responses. For those using
Likert scales, most scales ranged from one to ten with one rated as the least agreement or most
negative response to the question and ten as the most agreement/positive response. Some
questions were reverse scored, however.
There were 30 questions about the not proven verdict. Fourteen items asked for a scale
response to questions such as How do you perceive the not proven verdict in the Scottish legal
system?”, twelve items were forced-choice, and four were open-ended questions. There were
27 questions about 15-person juries, of which 15 were scale items, 11 were forced-choice and
one was open-ended. The one open-ended question in this section was Please give your
justification for the abolition or keeping of the 15-person jury system.” The simple versus
majority verdict system was assessed with 36 questions, of which 18 were scale, 17 forced-
choice and one was open-ended. The forced-choice items in this section included ranking
questions, such as “Please rank your preferred verdict system (1 being your most preferred
system, 3 being your least preferred system)”, for Simple majority system”, Unanimous
system” and Qualified majority system”. The final section of eight general questions consisted
of four scale, three forced-choice, and one open-ended items. The open-ended question asked
for suggestions of things to be introduced or removed from the Scottish legal system.
Procedure
Once participants consented to participate, they could respond to the questions and were
allowed to skip any they chose not to answer. At any point in the survey they could close the
survey window and their data would be retained for one week. If they did not return to the
study, this was treated as a withdrawal and their data were deleted. If they returned within
one week, they were able to continue the survey where they left off. Upon reaching the end of
the survey, participants were taken to a debriefing page.
Results
The results will be divided into four sub-categories: 1) verdict system; 2) jury size; 3) majority
size; 4) general jury system. The minimum number of participants who responded to a question
was 55, the maximum was 78.
Verdict System
Participants were asked to rank their most preferred (rank 1), second most preferred (rank 2)
and least preferred verdict system (rank 3) out of the following list: 1) guilty, not guilty and
not proven; 2) guilty and not guilty; 3) not proven and proven. There was a significant
difference in mean rank given to verdict types; χ2(2) = 57.47, p < .001. Post hoc analysis found
a significant difference between mean ranks for each verdict type, with ‘guilty and not guilty’
(mean rank = 2.41) ranked less favourably than either ‘guilty, not guilty and not proven’ (mean
rank = 1.96); Z = -4.69, p < .001, or ‘proven and not proven’ (mean rank = 1.64); Z = -6.16, p
< .001. ‘Guilty, not guilty and not proven’ was ranked significantly less favourably than
‘proven and not proven’; Z = -4.00, p < .001. Slightly more respondents ranked ‘proven and
not proven’ as their most preferred option than the current three verdict system (30 vs 28,
40.54% vs 36.84%). ‘Guilty and not guilty’ was ranked as the least preferred options by almost
half of the respondents (36, 48.65%).
Forty-five (60%) individuals suggested the legal system should keep the not proven verdict,
whereas 25 (33.33%) suggested abolishing the verdict; this finding was significant (binomial
test result; p = .02). Qualitative reasons given for keeping the verdict included 1) the not proven
verdict better reflects the purpose of court (N = 17; 22.67%); 2) it gives jurors a way to express
doubt without declaring a moral position (N = 9; 12%); 3) it reflects the non-binary nature of
life decision making (N = 7; 9.33%); 4) elements of the legal system should not be changed in
isolation without considering other elements of the system (N = 6; 8%); 5) it may encourage
more guilty / not guilty verdicts (N = 3; 4%); 6) juries prefer having it, it protects against biases
or it provides a balance to crown advantages (N = 3; 4%). Reasons for abolishing the not proven
verdict include jury misunderstandings about the verdict (N = 11; 14.67%), that the function
of the court is to make a binary choice (N = 6; 8%), and that it allows jurors a way out of
making decisions about the fate of the accused (N = 8; 10.67%). Five (6.67%) participants gave
responses to the question regarding the abolition of the not proven verdict that left their
preference unclear and/or provided a more nuanced answer. For example, one individual noted
that not proven was not justified in a three-verdict system, but would be suitable for a ‘proven
or not proven’ two verdict system.
In relation to perceived juror understandings of the not proven verdict, 55 participants (75.34%)
believed that jurors would perceive the verdict to mean “innocent in law but not community”
whereas 18 (24.66%) believed that jurors would perceive the verdict to mean “innocent in law
and community”. Fifty-three participants (67.95%) perceived the not proven verdict to reflect
a situation where the case had not been proven beyond reasonable doubt, eight (10.26%)
perceived it as being used by cautious juries instead of not guilty, six (7.69%) perceived it as a
verdict used by juries who are just shy of reasonable doubt or are nervous about convicting. A
further four participants (5.14%) believed not proven reflected an acquittal or verdict of
innocence, and seven participants (8.97%) provided answers that did not provide a clear
definition. When asked to define a potential proven verdict, 64 (82.05%) participants defined
it as reflecting a situation where a crime had been proven beyond reasonable doubt, nine
(11.54%) saw it as the same or close to the guilty verdict and three (3.85%) saw it as the same
as or close to the not guilty verdict. Two (2.56%) participants did not give a clear definition.
Several further questions were also asked to test participants’ perceptions of the Scottish jury
system; see table 1.
Please.Place.Table.1.here
Jury Size System
When asked to indicate their preferred jury size system (15 vs. 12), 63 participants (85.14%)
preferred the 15-person jury size, whereas 11 (14.86%) preferred the 12-person jury size; this
finding was statistically significant (binomial test result; p < .001). When asked about keeping
or abolishing the 15-person jury system, 52 (70.27%) favoured keeping the 15-person jury, and
gave reasons such as it allows a more representative jury to be collected (N = 20; 27.03%) and
that it leads to less bias, more flexibility for drop outs, and that there is no evidence that smaller
jury sizes are better (N = 7; 9.46%). Many participants qualified their preference to keep the
15-person jury by indicating conditions to their preference. Sixteen (21.62%) participants
indicated that the number of jurors was less important than the majority system used, and 9
(12.16%) suggested it was not possible to change juror numbers without also changing other
elements of the legal system. Six (8.11%) participants favoured abolishing the 15-person jury
system, suggesting that a larger group size increases the chance for a group mentality, or that
sufficient jurors are sometimes difficult to find. Significantly more participants preferred to
keep the 15-juror system than abolish or change it (binomial test result; p < .001). Six (8.11%)
participants suggested that juries should be removed and replaced by a panel of judges, six
(8.11%) suggested that the jury size made no difference to them, and four (5.41%) gave answers
which did not clearly state a preference or indicated neutrality on the issue. Several further
questions asked about participants’ perceptions of the current 15-person jury system; see table
2 and Figure 1.
Place.Table.2.here
Place.Figure.1.here
Majority size
Participants were asked to rank their most preferred (rank 1), second most preferred (rank 2)
and least preferred majority size out of the following list: 1) simple majority; 2) qualified
majority; 3) unanimous. There was a significant difference in mean rank given to majority
sizes; χ2(2) = 77.06, p <.001. Post hoc analysis revealed a significant difference between mean
ranks for each majority size, with the unanimous verdict size (mean rank = 2.75) being ranked
less favourably than either simple majority (mean rank = 1.81); Z = -5.64, p < .001, or qualified
majority (mean rank = 1.44); Z = -6.36, p < .001. The simple majority size was ranked
significantly less favourably than the qualified majority size; Z = -3.87, p < .001. The much
greater part of the sample preferred either qualified majority (27, 49.09%) or simple majority
(23, 41.82%), while most participants ranked the unanimous majority size as their least
preferred option (38, 69.09%).
Forty-one (60.29%) participants suggested that the simple majority system should be kept, with
the given reasons being: 1) the system is currently working fine (N = 17; 25%); 2) it promotes
discussion and/or speed and avoids a hung jury (N = 8; 11.77%); 3) it provides power to
individual jurors (N = 7; 10.29%); 4) five participants (7.35%) suggested it should be kept
because unanimity can be difficult to achieve, that it gives a needed advantage to the
prosecution, or that abolishing simple majority would lead to more acquittals; 5) four
participants (5.88%) stated that they would keep the simple verdict system if pressed, but would
prefer the removal of juries altogether . However, 21 participants (30.88%) suggested that the
simple majority verdict should be abolished, 14 (20.59%) said that it was too small a majority
for such a big decision and seven (10.29%) stated that the qualified majority system is the
fairest. Significantly more participants preferred to keep the simple majority system (binomial
test result p = .004). There were three (4.41%) answers that suggested the majority size could
not be changed without cascading changes to other protections in the system, or that it depended
on who was being asked. Three participants (4.41%) gave answers that did not clearly indicate
a preference. Table 3 and figure 2 demonstrate answers to further questions asked about the
impacts of different majority sizes.
Place.Table.3.here
Place.Figure.2.here
General Jury System
Participants were asked “if they were designing the legal system” which options they would
choose for each of the three factors (verdict system; jury size; majority size). First, 16
participants (20.51%) would choose a guilty and not guilty system, 22 (28.21%) would choose
a guilty, not guilty and not proven system, and 40 (51.28%) would choose a proven and not
proven system; this finding was significant (χ2(2) = 12.00, p = .002). Second, 13 participants
(17.33%) would use a 12-person jury, whereas 62 (82.67%) would choose a 15-person jury
(binomial test result; p < .001). Third, 42 participants (55.26%) would choose a simple
majority verdict system, 30 (39.47%) would choose a qualified verdict system (10 out of 12 or
12 out of 15) and four (5.26%) would choose a unanimous verdict system; χ2(2) = 29.79, p <
.001. Table 4 gives details on participants’ preferred combinations of verdict.
Place.Table.4.here
Several further questions were asked about participants’ general perceptions of the Scottish
jury system. Table 5 summarises the responses.
Place.Table.5.here
Frequencies and percentages of participants’ beliefs about which side particular elements of
the Scottish legal system favour were also measured; see table 6.
Place.Table.6.here
Discussion
Scottish legal professionals have a unique perspective on the Scottish legal system, and an
unmatched exposure to it throughout their careers. Most mock jurors may never experience a
real courtroom, whereas legal professionals may have decades of relevant experience. The
current study represents the only existing academic investigation into legal professionals’
views on the Scottish legal system to date. The discussion will follow the following structure:
1) verdict system; 2) jury size system; 3) majority size; 4) general policy implications and
conclusions.
Verdict System
The main finding in relation to the preferred verdict system was that participants ranked their
most preferred system to be ‘proven and not proven’ and their least preferred system to be
‘guilty and not guilty’. The majority of participants also suggested that the not proven verdict
should be kept. In addition, there was a tendency for participants to view the three-verdict
system positively and to be against the abolition of the not proven verdict. Further, the
availability of the not proven verdict was seen to favour the defence and its removal was seen
to favour the prosecution. This is consistent with Ormston et al.’s2 findings and indicates that
legal professionals agree with the findings of that study, as they suggest that the removal of
not proven may increase guilty verdicts. Three other studies using mock jurors found that the
not proven verdict did not favour the prosecution, however 5-7, so the legal professionals views
were inconsistent with those findings.
Previous research has highlighted that the availability of the not proven verdict can
significantly decrease the proportion of not guilty5,7 and guilty verdicts2 given. Juror simulation
research cannot assess whether this reduction is positive or a negative when considering the
aims of the legal system (i.e. maximising fairness and minimising miscarriages of justice).
These elements were tested through questions on reform and on methods of bias reduction and
juror participation. Insight from legal professionals, who are well informed about elements of
the system that may support the prosecution or the defence, is vital when evaluating the legal
value of changes in verdict frequencies. Qualitative data from the current study suggest that
the availability of the not proven verdict (and consequent reduction in guilty and not guilty
verdicts) may have a positive effect, as it allows jurors to express doubt without declaring a
moral position, allowing the court to more accurately reflect its own purposes. For instance,
the courtroom does not deal in principles of absolute truths, thus terms like guilty and not guilty
may mislead legal novices10 such as jurors or members of the general public reading about
trials in newspapers. Terms such as proven may, therefore, hint to jurors the true purposes of
court (i.e., to highlight if a crime has been proven with the evidence to hand10).
When asked what they would do if they could re-design the Scottish legal system from scratch,
most participants indicated that they would use a binary verdict system of proven and not
proven. This suggestion may link to ideas surrounding proof and truth, and may direct jurors
to their true role in a more nuanced way. The role of a jury is not to decide on whether an
accused did factually commit the crime or not, rather their job is to use the evidence to establish
whether the prosecution has proved their case beyond reasonable doubt10. When asked, the vast
majority of our sample of legal professionals defined the proven verdict to mean that a crime
“had been proven beyond reasonable doubt”. This definition had greater consensus than any of
the existing verdicts in the Scottish legal system.
The current study also highlighted that participants tended to perceive juror understandings of
the not proven verdict to be poorer than their ability to use the verdict accurately. The majority
of participants believed that jurors would view accused individuals who received the verdict as
being “innocent in law but not community”. This is consistent with the findings of previous
juror experiments as Hope et al.6 found that 55% of their sample in their two-verdict condition
had never heard of the not proven verdict, so were unlikely to have a concrete idea of its
definition and consequences.
According to Ormston et al.2, jurors struggled to differentiate the not proven verdict from the
not guilty verdict, being unsure about the consequences for someone acquitted by a not proven
verdict. It has been suggested that jurors give not guilty verdicts when they believe that the
accused is innocent, whereas they give not proven verdicts when they believe the prosecution
failed their case2,7,12. Jurors’ lack of understanding of the not proven verdict may not justify its
removal, but rather provide a reason to formally define the verdict. The vast majority of
participants in the current study suggested that the verdict be defined to mean “not proven
beyond reasonable doubt”, which would provide a clear counterpoint to the definitions of the
(currently unused) proven verdict given by our participants. Without input from legal
professionals, it would be difficult to clearly define the not proven verdict in a way that
accurately represents its legal purpose.
Jury Size
The main finding in relation to jury size was that participants were satisfied with the current
15-person jury system, preferring it to the 12-person jury system and indicating that they would
choose it if they were redesigning the legal system. Participants believed that the 15-person
jury system was more effective than a 12-person jury at attenuating biases. The current study
did not find a significant difference in participants’ perceptions of individual juror
contributions in the 15-person and 12-person juries. This latter point deviates from research
conducted by Ormston et al.2, who found that juror contributions were decreased in 15-person
juries compared to 12-person juries. Future research is clearly needed here, as there are
limitations to both the Ormston et al.2 paper and the current study. First, the maximum limit of
deliberation in Ormston et al’s2 study was 90 minutes, and such a time limit may have limited
the abilities of certain jurors to participate in discussions. Second, legal professionals do not
have access to jurors and may overestimate the part that each juror plays in the deliberation
process.
A small minority of participants in the current study suggested that juries be abolished and
replaced by a panel of judges. Previous research would suggest that this recommendation
would not help improve the system, as legal professionals have been consistently shown to be
susceptible to similar biases and errors as jurors13,14.
Previous research has highlighted that jurors (post-deliberation) are more likely to favour the
guilty verdict (thus, the prosecution) in a 15-person jury when compared to a 12-person jury2.
These findings may reflect some of the reasons given by participants in the current study for
keeping the 15-person jury. For instance, participants stated that 15-person juries: 1) allow a
more representative jury to be created; and 2) lead to an attenuation of bias in individual jurors.
Further, through the jury being larger, a wider representation of beliefs and biases is likely,
which may then cause an attenuation in the influence that bias plays in verdict making15.
Therefore, an increase in convictions when comparing 15-person juries with 12-person juries
may be highlighting that the former decision is more objective in assessing the evidence, rather
than being biased towards the prosecution; this may be useful to policy makers when
considering potential reforms.
Majority Size
Most of the participants in the current study ranked the qualified majority verdict (either a
10/12 version or a 12/15 version) as their most preferred majority size, although simple
majority was a close second. The unanimous verdict system was voted as the least preferred
verdict system by the majority of participants. However, the majority of participants in our
study suggested that they would choose a simple majority if they could design the legal system
from scratch. This may reflect a perception amongst legal professionals that the qualified
majority system is preferred as part of the current system, but that a simple majority would be
optimal alongside changes to other parts of the Scottish legal system.
The majority of participants perceived both the unanimous and qualified verdict systems to
favour the defence and that the simple majority verdict favoured neither side. Previous research
with jurors has also highlighted that jurors working with a simple majority verdict are more
likely to favour a guilty verdict than jurors working with a unanimous verdict2. The results
also highlighted that participants were currently against abolishing the simple majority verdict
for a unanimous verdict. Reasons given for keeping the simple majority verdict included
promoting discussion and speed of decision making and avoiding a hung jury, and there being
no need to change the current system. Participants indicated that the simple majority verdict
was better at reducing juror biases but was no better at increasing juror contributions than a
unanimous verdict. Ormston et al.2, however, found in their study that requiring unanimous
verdicts led to significantly more participation by jurors and longer deliberations. If a
requirement for a larger proportion of the jury to agree leads to more juror participation (as
shown in Ormston et al.’s2 study), a potential compromise to also ensure efficient deliberations,
a decreased chance of hung juries, and satisfied Scottish legal professionals, may be for the
jury system in Scotland to adopt a qualified majority verdict system.
General Jury System Preferences
When asked what elements of the Scottish legal system they would choose if they could
redesign it, the most popular combination selected by legal professionals in the current study
was a ‘proven or not proven’ verdict system, a 15-person jury and a simple majority verdict
size. The second most popular option was the current system, which may highlight a status quo
bias. The majority of the sample was reflected in the top 3 most popular combinations, with
the third most popular being ‘proven or not proven’, 15-person jury and a qualified majority
size. Interestingly, the Anglo-American system of ‘guilty or not guilty’, a 12-person jury and
a unanimous majority size was the least popular combination, with no supporters. In general,
the participants in the current study showed high confidence in the Scottish legal system and
felt negatively about reforming the system to be more like the Anglo-American system.
Conclusion
In conclusion, from involving stakeholders in research on the not proven verdict, the 15-person
jury system and the simple majority system, a number of recommendations can be made. First,
legal professionals show a preference for reforming the current three-verdict system to a binary
verdict system where the options are proven and not proven; this finding is one that would be
unlikely to come from experimental jury research. Second, legal professionals strongly prefer
that the 15-person jury system is kept, and see it as a method of reducing bias compared to a
12-person jury. Third, legal professionals prefer a qualified majority verdict system (12/15)
and are strongly against a unanimous verdict system. All these findings are novel to the
literature. Furthermore, the current study has found novel findings (i.e. that legal professionals
would prefer a verdict system of proven and not proven), and can make similar conclusions to
Ormston et al.2 despite using different legal actors (legal professionals rather than jurors) and
varying methods (survey vs. jury simulations)7. By triangulating the data from different studies,
using a variety of methods and different participants in the legal process, conclusions can have
greater utility to policy makers7 For instance, taken together, the current study and the study
by Ormston et al.2 indicate that (a) a binary verdict system of proven and not proven would be
preferred by legal professionals, who feel that it would provide greater access to justice, but
(b) a binary verdict system may increase convictions overall relative to a three verdict system.
Similarly, legal professionals’ preferred option of a 15-person jury system may increase
convictions in comparison to a 12-person jury system; whereas the preferred option of a
qualified majority verdict system may increase the number of acquittals in comparison to a
simple majority verdict system. However, Ormston et al.’s2 research did not consider a proven
versus not proven system with a qualified majority, thus not including experimental conditions
that reflect the preferred model of legal professionals. In order to most usefully inform policy,
a further juror simulation study is needed which includes these conditions in its experimental
design (indeed, such a study would usefully be informed by consulting with legal professionals
at the design stage). Crucially, a clear definition of what the not proven verdict means is
necessary for juries to perform their task.
Declaration of conflicting interests
The authors declared no potential conflicts of interest with respect to the research, authorship
and/or publication of this article.
Funding
The authors received no financial support for the research, authorship and/or publication of
this article.
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Tables and Figures
Tables
Table 1 Mean ratings (on a scale of 1 to 10) and standard deviations for perceptions of the
not proven verdict.
Questions
Mean
Standard
Deviation
Perception of three-verdict system
6.18
6.12
Perception of not proven verdict
6.11
3.54
Perceived juror understanding of not proven verdict
4.85
3.08
Perceived accuracy of juror usage of not proven verdict
5.77
3.00
Position on abolishment of not proven verdict (reverse scored)
6.06
3.80
Perception by general public on accused receiving not proven verdict
(reverse scored)
5.41
2.70
Table 2 Mean ratings (on a scale of 1 to 10) and standard deviations for perceptions of the
15-person jury.
Questions
Standard
Deviation
In favour of keeping 15-person jury
2.53
How positively do you see the current 15-person system
2.60
Current position on the abolition of 15-person jury system
(reserve scored)
3.04
Table 3 Mean ratings (on a scale of 1 to 10) and standard deviations for perceptions of the
simple majority.
Questions
Mean
Standard
Deviation
In favour of keeping simple majority verdict system
6.86
3.02
Current position on abolition of simple majority verdict
(reverse scored)
6.71
3.15
Table 4 Preferred combinations of 3 aspects of a legal system; jury size, majority type and
verdict system (number of votes and percentage of total votes).
Combinations
Frequency
%
15 Jurors / Simple Majority / P - NP
16
21.33
Status Quo: 15 Jurors / Simple Majority / G-NG-NP
13
17.33
15 Jurors / Qualified Majority / P - NP
11
14.67
15 Jurors / Simple Majority / G - NG
10
13.33
15 Jurors / Qualified Majority / G NG NP
7
9.33
12 Jurors / Qualified Majority / P - NP
6
8.00
15 Jurors / Qualified Majority / G NG
3
4.00
12 Jurors / Unanimous Verdict / P NP
2
2.67
12 Jurors / Qualified Majority / G NG NP
1
1.33
12 Jurors / Simple Majority / G NG
1
1.33
Anglo-American System: 12 Jurors / Unanimous / G
NG
0
0
All other combinations
0
0
Table 5 Mean ratings (on a scale of 1 to 10) and standard deviations for perceptions of the
Scottish Jury System.
Questions
Mean
Standard
Deviation
Current legal system’s ability to provide justice to victims
6.53
2.47
Current legal system’s ability to provide justice to
accused
6.76
2.34
How much confidence do you have in the current legal
system
6.88
2.39
How do you feel about current Scottish legal system
being reformed to become more like Anglo-American
system
2.92
2.07
Table 6 Frequencies and percentages of participants’ beliefs about which side particular
elements of the Scottish legal system favour. An asterisk (*) indicates a significant deviation
from equal distribution according to a one-sample chi-square test.
Favours Defence
Favours Neither Side
Favours Prosecution
Not Proven Verdict
N
%
N
%
N
%
Inclusion*
42
53.85
36
46.15
0
0
Removal*
7
8.97
40
51.28
31
38.74
Jury Size
15-Person*
8
10.53
63
82.9
5
6.85
12-Person*
18
24
52
69.33
5
6.67
Majority Size
Simple Majority*
57
74.03
20
25.97
0
0
Qualified Majority*
45
58.44
31
40.26
1
1.3
Unanimous*
3
3.9
45
58.44
29
37.66
Figures
Figure 1. Mean ratings for the perceived effect of 15-person and 12-person juries on increasing
juror contributions and reducing biases. Error bars show standard deviations and ***
indicates significant differences.
Figure 2. Mean ratings of the effect of simple majority and unanimous majority systems on
increasing juror contributions and reducing biases. Error bars show standard deviations and
*** indicates significant difference.
... In addition to the common suggestion that the not proven verdict should be abolished, there are some who suggest that a more purposeful reform would be to change to a binary verdict system of proven and not proven. For example, Curley et al. (2021) [38] asked legal professionals to rank three different verdict systems: (1) guilty, not guilty, and not proven; ...
... In addition to the common suggestion that the not proven verdict should be abolished, there are some who suggest that a more purposeful reform would be to change to a binary verdict system of proven and not proven. For example, Curley et al. (2021) [38] asked legal professionals to rank three different verdict systems: (1) guilty, not guilty, and not proven; ...
... These legal professionals ranked proven and not proven as their most preferred system; with guilty and not guilty being the least preferred system. One reason for this is that a proven and not proven system may help jurors to adopt their supposed role, i.e., to focus on whether the Crown has proven their case beyond reasonable doubt [3,38]. [3] investigated the effect that the three different verdict systems mentioned above had on juror decision-making in a homicide trial. ...
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The Scottish verdict system includes three verdicts: ‘guilty’, ‘not guilty’ and ‘not proven’. Politicians propose that the three-verdict system is partially to blame for the low conviction rate of rape, whereas research suggests that rape myths may be having a larger impact. To test the effects of varying verdict systems (guilty, not guilty and not proven; guilty and not guilty; a series of proven and not proven verdicts) and rape myths on juror verdicts. A total of 180 participants answered questions regarding their acceptance of rape myths using the Acceptance of Modern Myth and Sexual Aggression (AMMSA) scale. They then watched a staged rape trial filmed in a real courtroom and reached a verdict. Participants also provided longer-form answers on which thematical analysis was conducted. The main findings are as follows: (1) The special verdict system leads to a higher conviction rate than the other systems when rape myth acceptance is controlled for. (2) The higher the rape myth acceptance, the more favourably the accused was perceived and the less favourably the complainer was perceived.
... There are a number of possible reasons as to why the availability of the not proven verdict may influence the frequency by which guilty verdicts are given. Firstly, the availability of the not proven verdict may polarise the other available options (guilty and not guilty), leading jurors to use the not proven verdict as a compromise (Chalmers et al., 2022;Curley et al., 2021;Hope et al., 2008). Secondly, there may be differences between legal meaning and lay semantic interpretation of the not guilty and not proven verdictsnamely, as a distinction between 'truth' and 'proof' (Jackson, 1998). ...
... Secondly, there may be differences between legal meaning and lay semantic interpretation of the not guilty and not proven verdictsnamely, as a distinction between 'truth' and 'proof' (Jackson, 1998). Terms such as 'proven' may encourage jurors to focus on the negatives or weaknesses of the Crown's (prosecution) evidence since the burden of proof lies with them to demonstrate the guilt of the accused beyond reasonable doubt, thus leading jurors to be more likely to acquit (Curley et al., 2021Hope et al., 2008;Jackson, 1998;McKenzie, 1985). Finally, introducing a third option may be related to the so-called 'decoy effect' in preference and consumer behaviour (Huber et al., 1982;Kahneman & Tversky, 1984). ...
... For example, in extreme cases jurors may rely on stereotypes, emotions or prior beliefs to form a verdict. These factors can influence the decision-making process and may lead to decisions that are not considered fully rational (Curley et al., 2021). Similarly, the process during jury deliberation may also be constrained by the fact that jurors often try to reach a consensus where some jurors may be more persuasive and influential than others (Clark et al., 2007). ...
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We study the effect of the Scottish three-verdict system (guilty, not guilty, not proven) and the Anglo-American two-verdict system (guilty, not guilty) on juror decisions by combining data sets from 10 mock trials reported in suitable studies. A logistic regression with random effects uses the exact number of convictions and acquittals in 10 mock trials from a total of 1778 jurors to reliably estimate the effect of verdict system. We found a statistically significant verdict effect suggesting that the odds for a conviction by a juror are about 0.6 times or 40% lower under the three-verdict system than under a conventional two-verdict system. Possible explanations and implications of this verdict effect are discussed. This finding helps to better understand juror decision making in the context of the current reform of the Scottish three-verdict system into a two-verdict system.
... guilty and not guilty) in the first half of the 18 th century. However, the not proven verdict was retained, thus creating the current three-verdict Scottish system (Barbato, 2004;Curley, MacLean, Murray, Laybourn, & Brown, 2019;Curley et al., 2021a;Curley et al., 2021b;Smith & MacDonald, 1958). ...
... The debate on the not proven verdict has been somewhat divisive (Curley et al., 2021b;Richardson & Gardiner, 2021). Some supporters of the not proven verdict argue that it allows jurors to express doubt in the prosecution's evidence without taking a position on the accused's factual guilt (Curley et al., 2021a). Other proponents argue that it helps to distinguish a not guilty verdict as indicating belief in innocence, not just doubt in guilt (Jackson, 1998). ...
... One explanation for this finding is that the availability of the not proven verdict, with it's explicit reference to 'proof', might promote analytical thinking (Curley, Murray, MacLean, Laybourn, & Brown, 2018;Thomas, & Millar, 2012). This could implicitly focus jurors' attention on weaknesses in the Crown's case (Curley et al., 2021a;Hope et al., 2008;McKenzie, 1985), which may lead to a shift in their decision criterion (higher reasonable doubt threshold) and lead to a lower conviction rate (Curley et al., 2021b). ...
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The current Scottish verdict system includes three verdicts: ‘guilty’, ‘not guilty’ and ‘not proven’. The Scottish Government are currently reviewing the utility of the not proven verdict. Proponents of the not proven verdict suggest that it directs jurors to their true role of determining whether the prosecution’s case has, or has not, been ‘proven’. Reformists suggest a move to a system similar to England and Wales, with only guilty and not guilty verdicts. However, legal professionals have indicated a preference for an alternative system of proven and not proven. The aim of the current study was to test the effects of a proven and not proven system on verdicts given, when compared to alternative verdict systems (specifically, the current Scottish and Anglo-American verdict systems). 227 mock jurors watched a staged murder trial, filmed in a real-life courtroom, with legal professionals questioning witnesses and a judge giving legal direction. Jurors were significantly more likely to convict in a guilty and not guilty verdict system than either a proven and not proven or a guilty, not guilty and not proven verdict system. Future research should replicate this study with a focus on the impact of the not proven verdict in sexual offences.
... In Scotland, juries may return a guilty verdict (a conviction), a not guilty verdict (an acquittal) or a not proven verdict (an acquittal, with the same legal implications as a not guilty verdict. For more information on the origins of the not proven verdict, see Curley, Munro, Frumkin and Turner, 2021;and Curley and Neuhaus, 2024). Although there is legislation currently in progress to eliminate the not proven verdict (Victims, Witnesses, and Justice Reform Bill, 2023), there remain many cases that originally went to trial under the three-verdict system that could go to retrial in the future. ...
... Jurors have consistently been shown to have a poor understanding of the not proven verdict, with some participants reporting that it means 'close to guilty' while others believe it means 'close to innocent' and a range of other definitions (Curley et al., 2021;2022;Ormston et al., 2019;Hope et al., 2008). Jurors might then credibly interpret a previous trial ending in a not proven verdict as something akin to 'they almost got them!' or the 'no smoke without fire verdict' (Curley, MacLean, Murray, Laybourn, & Brown, 2019). ...
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Since the passage of the Double Jeopardy (Scotland) Act 2011, mirroring changes in other jurisdictions, a person who has been acquitted in Scotland can, under certain circumstances, be retried for that offence. Jurors could have knowledge of the previous acquittal verdict (whether not guilty or not proven) through media sources, potentially biasing the new jury in their decision-making. The current study invited 253 participants to give a verdict to a mock murder trial after either receiving pretrial information about the original verdict or no information about the case being a retrial. Significantly more acquittal verdicts were given when the participants were told that it was a retrial, compared to the control condition, irrespective of whether the prior verdict was not guilty or not proven. Findings are discussed in light of jurors’ knowledge of legal concepts and acquittal verdicts, and the increasing exposure of the general Scottish public to the not proven verdict due to increased media coverage.
... The way that jurors interpret the not proven verdict may be a key factor that influences juror decisions and consequently affects the frequency at which not guilty and guilty verdicts are made. Jurors seem to interpret the not proven verdict as a middling verdict, where they may perceive the accused as guilty but are not sure beyond reasonable doubt (Curley et al., 2019(Curley et al., , 2021. Therefore, jurors who are just shy of reasonable doubt in a two-verdict system may be forced to return a not guilty verdict, but in Scotland, they can show their scepticism relating to the innocence of the accused and the Crown's case through returning a not proven verdict (Jackson, 1998). ...
... A final avenue for future research might be to add a condition to the factor of verdict system, in which participants could give a proven and/or not proven verdict. This condition may more adequately reflect how legal professionals perceive the role of the jury in the courtroom (Curley et al., 2021;Jackson, 1998). ...
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... Indeed, there is evidence to suggest that for many rape trial jurors, the decision to return a guilty verdict is a burdensome one and emotions surrounding the consequences of a rape conviction on a man's future seem paramount (Willmott, 2018). Research on use of the not proven verdict in the Scottish jury system appears to support this assertation, with jurors seemingly choosing to 'opt out' of the need to make a difficult decision especially in rape trials, in part possibly due to empathy held for the defendants' circumstances who may otherwise be convicted (for a review see Curley et al., 2021;2022). It is important however to note that the role of psychopathic personality traits upon juror decision-making is a new and a novel exploration within the current study; ...
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Introduction Trial by jury is a longstanding legal tradition used in common law jurisdictions to try the most serious of criminal cases. Yet, despite hearing the same trial evidence, individual jurors often arrive at different verdict decisions, indicating that they may be impacted by more than the evidence presented at trial. This study therefore sought to investigate the role of jurors’ psychopathology, attitudinal, experiential, and demographic characteristics upon individual verdict decisions. Methods Adopting an improved mock trial paradigm, 108 jury-eligible participants took part in one of nine identical 12-person mock trial simulations depicting a videotaped recreation of an intimate partner rape trial. Pre-trial, mock-jurors completed a psychosocial survey capturing their psychopathic personality traits (affective and cognitive responsiveness, interpersonal manipulation; egocentricity), rape myth beliefs, victimization experiences and demographics. Post-trial, jurors deliberated to reach a collective group decision and individual verdict decisions were recorded pre- and post-deliberation. Results Binary logistic regression analyses revealed rape myth beliefs and juror ethnicity were significantly related to verdict decisions both pre- and post-deliberation. Post-deliberation, decreased affective responsiveness (empathy) and experience of sexual victimization were also found to be significant predictors of guilty verdict selections. Discussion These findings indicate for the first time that within an intimate-partner rape trial, certain psychosocial traits, crime-specific attitudes, and experiences of sexual victimization appear to predispose juror judgments and decision-making even after group-deliberation. This study therefore has important implications for understanding how individual differences among jurors may impact rape trial verdict outcomes and the need for targeted juror reforms.
... Consequently, the replacement of jurors with expert judges may not, by itself, attenuate the role that bias plays in the criminal justice system. Despite these findings, a substantial minority of legal professionals indicate a preference for panels of judges to replace juries 67 . ...
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... 119 It also emerged as the preferred model for a redesigned verdict system (when contrasted against the current three verdicts or a move to guilty/not guilty) in an online survey of 78 practitioners. 120 In support of this proven/not proven alternative, the reasoning offered 'virtually every time' during the engagement events was 'that a jury's role is not to determine a person's guilt or innocence, but rather to assess whether the Crown has proven the charge'. 121 This represents, however, a very denuded conception of the jury's role, which is not limited simply to questions of 'what happened'. ...
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In most adversarial systems, jurors in criminal cases consider the binary verdict alternatives of "Guilty" and "Not guilty." However, in some circumstances and jurisdictions, a third verdict option is available: Not Proven. The Not Proven verdict essentially reflects the view that the defendant is indeed culpable, but that the prosecution has not proven its case beyond a reasonable doubt. Like a Not Guilty verdict, the Not Proven verdict results in an acquittal. The main aim of the two studies reported here was to determine how, and under what circumstances, jurors opt to use the Not Proven verdict across different case types and when the strength of the evidence varies. In both studies, jurors were more likely to choose a Not Proven verdict over a Not Guilty verdict when the alternative was available. When evidence against the defendant was only moderately strong and a Not Proven verdict option was available (Study 2), there was also a significant reduction in the conviction rate. Results also showed that understanding of the Not Proven verdict was poor, highlighting inadequacies in the nature of judicial instructions relating to this verdict.
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