by Chris Bodenner

A few final thoughts on the thread:

I'll admit I haven't followed the Anthony case. When you've seen one media circus, you've seen them all; I can't think of a single high-profile case in my life that the media hasn't covered as a "slam dunk" prosecution ruined by "out-dated" civil rights or a biased jury. However, allow me to add some perspective to the discussion. As this Harvard study shows, US prosecutors have something like a 90% win rate.

That's right; if you find yourself before a court, you've only got about a 10% chance not to go to jail. Some people may look at that number and think, "Wow, our police sure must do a bang-up job at only arresting guilty people", but anyone who reads Radley Balko on a regular basis, or keeps track of how many death penalty convictions have been thrown out on account of DNA evidence, probably has a somewhat less sanguine view of the matter.

So forgive me if I roll my eyes at the likes of Mrs. Grace and Mr. DeGirolami when they lament the sorry state of the stupid, biased, ill-informed juries our poor prosecutors have to work under, and how it leads so often to "travesties" like the Anthony case that it needs to be "reformed" to make it even more difficult for defense attorneys. If the case had been the "slam-dunk" that pundits like this have spent so much time trying to convince their audiences it was, then maybe the prosecutor, operating under a system that favors them to the extent that they can suppress exhonerating evidence and not be punished for it, would have actually won.

Someone should send that Harvard study to Mitch McConnell, who made a profoundly dumb statement yesterday:

The Casey Anthony acquittal shows why U.S. civilian courts should not be trusted to handle terror-suspect cases, Senate Republican Leader Mitch McConnell said. "We just found with the Caylee Anthony case how difficult is to get a conviction in a U.S. court," McConnell, R-Ky., told "Fox News Sunday."

Ryan J. Reilly throws more data at McConnell:

According to the federal data, federal prosecutors had an overall 93 percent conviction rate in fiscal year 2010. DOJ has defended the use of the civilian court system and says over 300 international and domestic terrorists are incarcerated in federal prisons. The Justice Department recently indicted a Somali man with alleged ties to Islamic extremist groups in federal court in New York.

Back to the thread and another reader:

I disagree with the comments of several of your readers that there is no difference between the Scottish "not proven" and "not guilty" verdicts and our "not guilty" verdict. As I understand it, a "not proven" verdict in Scotland is roughly equivalent to the American "not guilty" verdict, whereas the Scottish "not guilty" verdict is designed to more strongly express the actual innocence of the defendant. The Scottish verdicts may not result in different legal consequences, but they do result in less ambiguity, which is a real advantage.

A two-verdict system makes sense in the civil context, where (in the US) the standard of proof is usually "preponderance of the evidence." As this means simply "more likely than not," both "guilty" and "not guilty" civil verdicts have roughly equivalent information content. In the US criminal system, however, we use the "beyond a reasonable doubt" standard to ensure that it is significantly more difficult to convict a defendant than to acquit her. One consequence of this is a drastic reduction of the information content of a "not guilty" verdict. "Not guilty" in the criminal context can mean anything from "she was certainly innocent," to, as in Casey Anthony's case, "she is probably, and perhaps even very likely, guilty."

This ambiguity puts defendants who are truly innocent at a significant disadvantage. Although innocent defendants don't suffer any criminal penalties after an acquittal, we need only imagine how comfortable we would be raising children next door to a person who was tried and acquitted of sexually abusing a child to understand the social stigma innocent defendants face because of the ambiguity of a "not guilty" verdict. A third verdict would lessen this stigma by conveying to society that, not only did the jurors not have enough evidence to convict the defendant, but they were actually convinced of the defendant's innocence. A "not proven" verdict would also allow a jury to send the message that several Casey Anthony jurors have since tried to convey in interviews: the defendant is probably guilty, but there is not enough evidence to convict her beyond a reasonable doubt.

Several states, including California, take a similar steps to reduce the ambiguity of the "not guilty" verdict. In California, a defendant who is acquitted of criminal charges can, under certain circumstances, petition the court for a "finding of factual innocence." In that proceeding, the burden of proof is on the former defendant to offer evidence that he is actually innocent of the charges.

By the way, Larry Laudan, whom you quoted in your original post, is a former professor of mine. He's a legal epistemologist who has written several papers on this topic, as well as on the function of burdens of proof and also the possibility of using different burdens in criminal trials depending on the severity of the charges. His papers are all available on his SSRN page.