December 8, 2004
Changes in Murder Law in Australia; Abolition of Scotch Verdict
Australia is considering wide-ranging changes in the law of homicide, including abolition of the defense of provocation (what Americans would call heat-of-passion or extreme emotional disturbance), and changing the imminence requirement to "immediately necessary" to allow the defense more readily in battered spouse cases. The discussion is based on a report by the Victorian Law Reform Commission which has studied the issue for three years.
Meanwhile, Scotland is considering eliminating the famous "Scotch Verdict"--"not proven" as an alternative to guilty or not guilty. [Jack Chin]
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It's interesting that Scotland is thinking about getting rid of its three-part verdict form. I was particularly struck by its reasons for doing so: the fear that the "not proven" verdict leaves a stigma on the accused who has just been acquitted. I agree that acquittals are stigmatizing, but actually think that the real problem is giving the jury only two choices: "guilty" and (effectively) "didn't prove that you were guilty." If I'm right that acquittals are already harmful to the accused, I worry that Scotland would be going the wrong direction in eleminating one of its three verdict choices. If I were an innocent defendant, I would rather the jury have one choice that is more clearly exonerating -- it's current "not guilty."
University of Illinois College of Law
Posted by: Andrew D. Leipold | Dec 8, 2004 8:56:14 AM
I agree that "not proven" makes acquittals more meaningful, and I think it has the same effect on convictions. I suspect juries are more readily able to apply the presumption of innocence and the burden of proof if they have a middle option in cases where suspicion is high but the evidence is not quite there.
Posted by: Jack Chin | Dec 8, 2004 1:39:09 PM