Not Guilty: Are the Acquitted Innocent?

By Marder, Nancy S. | Law & Society Review, January 1, 2013 | Go to article overview
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Not Guilty: Are the Acquitted Innocent?


Marder, Nancy S., Law & Society Review


Not Guilty: Are the Acquitted Innocent? By Daniel Givelber and Amy Farrell. New York: New York University Press, 2012. 209 pp. $35.00 hardcover.

Daniel Givelber and Amy Farrell examine whether those who are found "not guilty" by a judge or jury are actually innocent. The problem, as they explain, is that acquitted defendants are not viewed as innocent, but as guilty-either of the crime charged or of some other crime-and they are seen simply as having benefitted from the prosecution's failure to make its case beyond a reasonable doubt. Even after an acquittal, the charge can come back to haunt a defendant, such as through an enhanced sentence for a future crime. The authors seek to challenge this conventional view of an acquittal. They want to explore when those who are acquitted are actually innocent. To do so, they turn to an early empirical study and to a recent database.

Harry Kalven and Hans Zeisel conducted the early empirical study, which they published as The American Jury in 1960. They received questionnaires from over 550 judges nationwide in 3,576 criminal cases and asked them to indicate whether they agreed with the jury's verdict (p. 23). One of Kalven and Zeisel's key findings was that judges and juries agreed in about 78 percent of the cases. When there was judge-jury disagreement, judges thought it was because the evidence was close, which "liberated" jurors to introduce their values ("sentiment") into their decision-making. According to this liberation theory, when jurors relied on values, they tended to be more lenient than judges and to acquit in these cases.

To test whether today's juries are liberated in close cases and rely on sentiment, Givelber and Farrell turned to jurors, in addition to judges, to explain judge-jury disagreement. They used questionnaires collected in 2000 and 2001 from a National Center for State Courts (NCSC) study of hung juries in four large metropolitan areas (Bronx, Washington, D.C., Maricopa County, and Los Angeles). Givelber and Farrell found that when jurors were asked to explain their verdicts in close cases, they said that they relied on the evidence. Although the Kalven and Zeisel study relied on judges to explain juries' verdicts, the Givelber and Farrell study, drawing on the NCSC questionnaires, relied on jurors and judges and they gave different explanations.

Givelber and Farrell's book makes several contributions to our understanding of juries, judges, and their views of acquittals.

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