It shifts the burden of proof from the prosecution to the defendant, where a verdict of innocent would require that the defendant prove "actual innocence" while the prosecution tries to prove guilt beyond a reasonable doubt. Ken's lightened the load a bit, suggesting that only 10 out of 12 jurors need agree on actual innocence. It's a kind thought, but still not enough.First, let me say that I recognize my idea is not a perfect - it's just better than the system as currently laid out. Currently, even if the jury thinks the charges are the most bogus, unsubstantiated pile of malarky, all it can do is find someone not guilty. Ironically, in Virginia the only way get a finding of "innocent" is to be convicted, file for a writ of actual innocence, and have it granted. I suspect this is similar to other States, although most of them probably do this in habeas proceedings where the defendant can find himself right back in murky waters. Is a defendant innocent or just not guilty if his conviction is overturned because of ineffective assistance of counsel?
And it suffers from yet another infirmity. It is quite possible that a wholly innocent defendant be placed into a position of appearing more likely guilty than not (the preponderance standard), when an eyewitness identifies the defendant as the perpetrator of a crime that he simply did not do. This is compelling evidence, even though it's of dubious value given the frequency of false identifications and the problems inherent in eyewitness testimony. But even when it may not be sufficient to meet the beyond a reasonable doubt standard, rarely would a jury reject it so completely as to conclude the defendant to be innocent.
In any event, I accept that in some cases the jury will find someone not guilty when he is actually innocent - just like juries now wrongly find some people not guilty or guilty. As long as we human beings are involved the system will never be perfect. However, that does not relieve of of the obligation to try to make it better.
And this system would be better. I suspect that the number of people found innocent rather than not guilty would be a small percentage. I could be wrong in this. Faced with legal mumbo-jumbo about whether someone is merely not guilty or innocent jurors may default to innocent (thus making Scott a happy man). Either way, a number of people who are now being found not guilty would find themselves completely cleared of the charge.
As to the burden of proof, I disagree with Scott. There is no burden shifting under the system as I envision it. I envision what we call around here a "waterfall instruction." It would go something like this:
If you find that the prosecution has not proven its case beyond a reasonable doubt you must then decide whether the prosecution has proven its case by a preponderance of the evidence. If 10 jurors agree that the prosecution has failed to prove its case by a preponderance of the evidence you shall find the defendant innocent. Otherwise, you shall find the defendant not guilty.That puts no burden whatsoever on the defendant to prove anything. In fact, in most cases it would just add ammo to the defense attorney's arguments: "Not only do they have to prove Mr. Smith "not innocent", which the prosecution has failed to do, they must climb even higher and reach beyond a reasonable doubt. Since they've failed to prove him "not innocent" they've failed abysmally in their attempt to reach that hallowed level of proof."
It'd be a pain in the posterior region. However, sometimes such a pain is acceptable if it makes the system more just.
