ImpeachMe
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Glasgow
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Contrary to what is often implied, the "Not guilty" verdict came back into Scots law in 1728 as result of a jury asserting its right to judge the justice of the case and not just the facts of the case.
In effect, the proven, not proven verdicts is a judgement on the defendant, whereas the "not guilty" is a judgement of the law.
It was first asserted in modern times in the trial for the murder of the Earl of Strathmore where the defendant had clearly killed the Earl. The individual facts being proven, a jury verdict of proven on each of the facts, would leave the judge free to find him guilty.
But, the jury knew the death to be an accident, and if they simply accepted their role was to judge the facts, this innocent defendant was going to hang.
We must remember that in 1670 at the trial of William Penn, the English jury had secured the right to return what is wrongly called a "perverse verdict", which is actually an assertion of an English jury's right to judge the whole case and refuse to implement unjust laws.
So, whether or not this ancient right actually existed, the Scottish jury was clearly influenced by the trial of William Penn and believe it also had the right to refuse to bring in an unjust verdict. So, to prevent this injustice the jury reasserted its "ancient right" to judge the whole case and returned the "Not guilty" verdict.
The difference between the 1728 "Not proven" and "Not guilty" verdict was not so much a judgement of the defendant, but a judgement of the state. According to the state he was guilty, the jury felt otherwise. To save this innocent man, the jury reasserted its ancient right not just to judge whether the facts were proven, but in a damning indictment on the legal system of that time, they reasserted their right to judge the justice of the law itself.
Though the "Not guilty" is a misused verdict in need of change, without it we are denying a fundamental democratic right of jurors to judge not only the facts put before them but also the justice of the law itself.
And, it is worth mentioning that in 508BC the Solon reforms to the Athenian jury were within a century followed by full democracy in Athens, and in 1775 we have the American war of independence, which was sparked off by the removal of trial by jury in the Gaspee trial.
“I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution." [Thomas Jefferson]
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