One of the most frequently asked questions of criminal defense lawyers is some variation of “How can you represent someone you know is guilty?” Law students ask this question often as they explore vicariously the possibility of representing the criminally accused. I respond carefully. I try to take them back to my own experience and the immense pride (and yes, sometimes trepidation) I felt in assisting some of the most powerless and forgotten members of our society. I tell them the truth. The hardest cases were not those in which I thought that my client was guilty. Hardest were those cases in which I believed or suspected that my client was innocent. Those are the cases over which I lost the most sleep and worried that my own limitations and competencies as a lawyer would unfairly determine my client’s liberty. I worked tirelessly for acquittals in those cases (and others) but recall to this day that even acquittals could not make innocent criminal defendants “whole.” Acquittals were viewed by defense and prosecution attorneys alike as lucky windfalls. The acquitted defendant somehow evaded the “true verdict” of guilt. Rarely could acquitted defendants return to their former lives without the stain of having been accused. In other words, a defendant who was found “not guilty” was perceived as not entirely “innocent” either.
A close examination of verdicts of acquittal has been long overdue. This is precisely what Daniel Givelber and Amy Farrell bring to us in their new book Not Guilty: Are the Acquitted Innocent? In particular, they study the relationship between the acquittals and actual innocence. They begin with the notion that acquittals, like comedian Rodney Dangerfield, “get no respect.” Practitioners, scholars and the general public tend to assume that acquittals are based on misinformed or nullifying jurors or systemic failures allowing the guilty to go free. The authors observe that the law itself harbors a similar bias insofar as evidence of prior acquittals can be admitted in the adjudication of a new offense or to enhance a sentence in a new offense. Givelber and Farrell acknowledge that they can’t directly disprove these assumptions. (For instance how do we know whether an acquitting jury has nullified or genuinely believes that the defendant is not guilty of the charge?). Instead they analyze data from four hundred trials to determine how and whether the evidence in acquitted cases differs from or resembles the evidence in conviction cases.
Not Guilty discloses that jurors tend to acquit precisely when there is insufficient evidence of actual guilt and not for some other idiosyncratic reasons. The authors conclude that the most obvious explanation for a dearth of evidence of guilt is the absence of guilt itself, and not some other far-fetched factor. They find no basis for concluding that other factors are at playIn addition, the authors were able to discern that in most cases, judges and juries base their verdicts on similar factors and tend to come to consistent conclusions regarding guilt, a determination that belies the assumption that jurors are less rational, perceptive or law-abiding than judges in their verdicts. They found one notable exception to this. Indeed, one of the most intriguing and puzzling discoveries the researchers make – and this point warrants greater study and exploration – is that when judges and juries do deviate in their assessments of guilt, race is a significant factor. It so happens that, left to their own devices, judges would convict black defendants at higher rates than juries would, and would acquit white defendants at higher rates than juries. Judges voted to convict African-American defendants and Latino defendants at higher rates than they voted to convict their white counterparts. Without more information, we can’t know whether this difference is grounded in racial bias or some other factor. In any event, what matters to Givelber and Farrell is not understanding the basis for the acquittal gap between juries and judges when it comes to race but explaining the perception that acquittals—when they occur—are based on extra-legal factors. One explanation for this perception of acquittals that also takes race into account may be that several high profile and racially-controversial trials have resulted in acquittals. Think here of O.J. Simpson, Rodney King or George Zimmerman cases and the media attention surrounding them. These cases arguably leave the public with impression that “not guilty” jury verdicts are based on something other than a lack of guilt.
In the end, Givelber and Farrell’s data cannot quantify the degree to which acquittals represent actual innocence. They convincingly argue that no study could prove a negative. Still, their findings support the hypothesis that verdicts tend to correlate with the strength and existence of evidence. It thus opens the door to further examination of acquittals and the circumstances that accompany what we should now assume are wrongful accusations.