BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair S
2003-2004 Regular Session B
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3
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SB 638 (Burton)
As Amended April 30, 2003
Hearing date: May 6, 2003
Penal Code
NJ:br
Criminal Procedure - verdict
upon a plea of "Not guilty" - CHANGE TO "NOT PROVEN"
HISTORY
Source: Judge Quentin Kopp
Prior Legislation: SB 1413 (Kopp) - failed passage 4/23/96,
Senate Committee on Criminal
Procedure
SB 522 (Kopp) - 1993-94; provisions deleted prior
to enactment
Support: Judge Quentin Kopp; Attorney Harland W. Braun
Opposition:California District Attorneys Association; American
Civil Liberties Union
KEY ISSUE
EXISTING LAW STATES THAT A GENERAL VERDICT UPON A PLEA OF NOT GUILTY
IN A CRIMINAL PROCEEDING IS EITHER "GUILTY" OR "NOT GUILTY."
Should the verdict of "not guilty" IN A CRIMINAL PROCEEDING be
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replaced by the verdict of "not proven," AS SPECIFIED?
SHOULD the term "not guilty" in any other provision of law have the
same meaning as "not Proven," as specified?
PURPOSE
This bill changes a verdict of "not guilty" to "not proven" and
provides that "not guilty" in all provisions of law shall have
the same meaning as "not proven."
Existing law states that a general verdict upon a plea of "not
guilty" in a criminal proceeding is either "guilty" or "not
guilty," which imports a conviction or acquittal of the offense
charged. (Penal Code 1151.)
Article I, Section 15, of the California State Constitution
states that "Persons may not twice be put in jeopardy for the
same offense. . . ."
This bill does the following:
Replaces the "not guilty" verdict option with a "not proven"
verdict option, and thus changes existing law so that a
general verdict upon a plea of "not guilty" is either "guilty"
or "not proven."
Provides that a defendant shall not be tried again for any
offense for which a general verdict of "not proven" is
rendered and that a general verdict of "not proven" shall have
the same effect as an acquittal for purposes of double
jeopardy.
Changes the term "not guilty" in any other provision of law to
have the same meaning as "not proven," as specified.
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COMMENTS
1. Need For This Bill
According to the author:
A verdict of "not guilty" usually does not mean a
jury has decided an accused is innocent of the crime
of which he or she is accused. Rather a jury may
believe there was some wrongdoing but that not enough
evidence was presented to support a "guilty" verdict
beyond a reasonable doubt. On the other hand, some
juries, fearing community outrage, may render a
verdict of "guilty, " although the requisite standard
of proof beyond a reasonable doubt has not been
satisfied. A verdict of "not proven" might prevent
confusion and perhaps even prevent the public outcry
over the verdict of "not guilty" in some cases. The
purpose of this bill is to provide juries with a more
accurate description of a jury verdict which does not
find enough evidence for a conviction beyond a
reasonable doubt but does not believe that the
defendant is innocent. The purpose of this bill is
not to change the intent, meaning or consequence of a
"not guilty" verdict, but simply to change the
wording of "not guilty" to "not proven."
2. The Scottish System
In Scotland, a jury is not restricted to the two verdicts of
"guilty" and "not guilty," but instead is presented with a third
possibility; a verdict of "not proven." After such a verdict
the accused is acquitted and cannot be tried again on the same
charge. In this respect it has the same effect as a verdict of
"not guilty."
Although similar to what the author is proposing in this bill,
the Scottish system offers three verdict options instead of two
and also needs only a majority for a verdict in that system.
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3. United States Precedent
a. "Not Proven" Verdict
Although no state offers a choice of the "not proven" verdict,
it has been successfully used in one case in Washington State
(State v. Bastinelli (1973), 506 P2d 854) and one case in
Georgia (Williams v. State (1972), 190 SE2d 785), based on the
rationale provided by the author of this bill.
In State v. Bastinelli the judge acquitted a defendant by
entering a verdict of "not proven," because although he
believed a crime had been committed, the state had failed to
connect the crime to the defendant beyond a reasonable doubt.
The judge stated:
In Scottish Law, there are three forms of
verdict: "guilty", "innocent", and "not
proven". My Judgment here is not a verdict of
"innocent". It will be a verdict of, "not
proven". My personal opinion is there has been
a fraud here, but it is not proved, and I will
have to dismiss the case.<1>
Likewise, in Williams v. State the court took note of the
Scottish "not proven" verdict while reversing a conviction on
the ground that there was insufficient evidence. The court
pointed out that in circumstantial evidence cases, such as the
one before it, the state must affirmatively exclude every
other reasonable hypothesis but guilt to sustain conviction.
Analogizing its conclusion to the three-verdict option in
Scotland, the court held that:
[d]espite the apparently incriminating
circumstantial evidence which resulted in a
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<1> State v. Bastinelli, 506 P2d 854. BNA Criminal Practice
Manual, "California May Experiment With 'Not Proven' Verdicts,"
March 31, 1993.
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conviction this exclusion has not occurred . .
. we find that here the "not proven guilty"
verdict would have been appropriate and
therefore the case is Reversed.<2>
b. "Not Guilty" Does Not Equal Innocent
In a Mississippi case (Williams v. State (1991) 589 So2d 1278,
1279), the court rejected a jury instruction for a "not
proven" alternative. The court stated:
In American jurisprudence, however, the legal
term "not guilty" is not totally synonymous
with innocence. "Not guilty" is the legal
finding by the jury that the prosecution has
not met its burden of proof. A "not guilty"
verdict based on the insufficiency of the
evidence can result from one of the two
states of mind on your part. That you
believe the defendant is innocent and did not
commit the crime; or, although you do not
necessarily believe he is innocent, and even
tend to believe he did commit the crime, the
prosecution's case was not sufficiently
strong to convince you of his guilt beyond a
reasonable doubt. What flows from this is
that you do not have to believe the defendant
is innocent in order to return a verdict of
"not guilty".
Although this bill changes the verdict option of "not guilty" to
"not proven," it does not change the meaning of the verdict. In
other words, for all intents and purposes, a verdict of "not
proven" will function the same as a "not guilty" verdict
functions now.
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<2> Williams v. State, 190 SE2d 785. BNA Criminal Practice
Manual, "California May Experiment With 'Not Proven' Verdicts,"
March 31, 1993.
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IF THE VERDICT OF "NOT GUILTY" IS CHANGED TO "NOT PROVEN," WOULD
IT BE MORE LOGICAL TO ALSO CHANGE THE VERDICT OF "GUILTY" TO
"PROVEN," SO THAT THE JURY SYSTEM WOULD BE LEFT WITH AN OPTION
OF "PROVEN" AND "NOT PROVEN?"
IS THE PRESUMPTION OF INNOCENCE AND THE JURY INSTRUCTION FOR
BURDEN OF PROOF SUFFICIENT TO GUIDE THE JURY UNDER THE PRESENT
SYSTEM?
IS THE CHANGE TO "NOT PROVEN" NECESSARY IF A "NOT GUILTY"
VERDICT CURRENTLY MEANS THAT THE PROSECUTION HAS NOT MET ITS
BURDEN?
AFTER OVER 200 YEARS OF A CRIMINAL JUSTICE SYSTEM BASED UPON THE
NOTION OF GUILTY AND NOT GUILTY, WOULD IT BE GOOD PUBLIC POLICY
TO CHANGE IT?
4. Determination of factual innocence
If a defendant who is found "not proven" and is factually
innocent, wants to clear his/her records, under existing law
they would be able to do so. (Penal Code 851.8 and 851.85.)
Existing law allows an arrested person to petition the
appropriate law enforcement agency or court for destruction of
the arrest record where no accusatory pleading has been filed,
no conviction has occurred, or the person has been acquitted. A
determination that the arrested person is factually innocent is
generally required before the petition can be granted. When a
judicial determination is required, the matter may be heard and
determined upon any evidence which is material, relevant, and
reliable. (Penal Code 851.8.)
In the event that a final judgment, based on a constitutional
claim, excludes such evidence, Penal Code Section 851.85 permits
sealing of the record only when a person is acquitted and it
appears to the trial judge that he/she was factually innocent.
Under Penal Code Section 851.8, on a determination of factual
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innocence, the arrest records must be sealed for three years
from the date of arrest, then destroyed. When the record has
been sealed, the arrest is deemed not to have occurred and the
arrested person may answer "accordingly" any question related to
its occurrence. Under Penal Code Section 851.85, the defendant
is entitled to state that he was not arrested for the charge and
that he was found innocent of it by the court.
According to the Bureau of Criminal Identification and
Information, at the California Department of Justice, Penal Code
Section 851.8 petitions to seal and destroy arrest records and
certifications of factual innocence are filed approximately 800
times per year. Since over 1.2 million arrest prints are
processed by the Department of Justice per year, the number of
petitions for certification of innocence per year is considered
rather small.
WOULD REPLACING THE VERDICT OPTION OF "NOT GUILTY" TO "NOT
PROVEN" ENHANCE THE NUMBER OF DEFENDANTS PETITIONING FOR
DESTRUCTION OF THEIR ARREST RECORDS?
WOULD COURTS BE ABLE TO HANDLE THE INCREASED NUMBER OF PETITIONS
FOR DESTRUCTION OF ARREST RECORDS.
5. Possible Stigma with "Not Proven"
Existing law provides that a "guilty" verdict in a criminal
action is res judicata in a civil action.
WOULD THE FACT THAT SOMEONE WAS FOUND "NOT PROVEN" HAVE A
GREATER IMPACT ON A CIVIL JURY THAN A "NOT GUILTY" VERDICT?
WOULD A DEFENDANT EVER FEEL TRULY ACQUITTED WITH A "NOT PROVEN"
VERDICT?
IN THE EVENT WHERE A DEFENDANT IS ACTUALLY NOT GUILTY, WOULD
THERE BE A SOCIAL STIGMA ATTACHED TO THE DEFENDANT FOR BEING
FOUND "NOT PROVEN," THAT HE/SHE IS ACTUALLY GUILTY BUT THERE WAS
INSUFFICIENT EVIDENCE TO CONVICT?
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DOES CHANGING FROM A "NOT GUILTY" VERDICT TO A "NOT PROVEN"
VERDICT ASSUME EVERY DEFENDANT IS ACTUALLY GUILTY? DOES THIS
EFFECTIVELY DO AWAY WITH THE PRESUMPTION OF INNOCENCE?
6. Arguments in Opposition
According to the District Attorneys Association:
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CDAA opposes this measure because it accomplishes
nothing substantive with respect to the rights and
protections afforded criminal defendants but adds
greatly to the confusion faced by jurors in a
criminal trial. It is an almost verbatim
resurrection of Senator Kopp's SB 1413 of a few years
past, which failed in committee.
Under existing law, a verdict of "not guilty" means
precisely that the defendant's guilt has not been
proven beyond a reasonable doubt by the prosecution.
Our criminal justice system, as it currently exists,
gives criminal defendants many procedural and
substantive safeguards to ensure that innocent
persons are not convicted. The presumption of
innocence and the jury instruction on the People's
burden of proof are sufficient to guide a jury's
deliberation. Far from removing any pressure on
jurors to vote "guilty" merely to escape the
potential public opprobrium of a "not guilty"
verdict, this measure will negatively impact
successful prosecution of guilty criminals by giving
defense attorneys an opportunity to capitalize on the
juror's confusion and argue semantically that jurors
need not find the defendant "not guilty" absent such
a verdict.
The changes contemplated in this bill are
unnecessary, yet they will result in chaos and
confusion. It is simply not good public policy to
disturb the unbroken tradition of over 200 years in
the criminal justice system represented by the use of
the "not guilty" verdict.
7. Effect of Changing Meaning in Law of "Not Guilty" to "not
proven" in All Provisions of the Law
In the April 30th amendments, the author inserted a new clause:
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The term "not guilty" in any other provision of the
law shall have the same meaning as "not proven" as
that term is used in this section.
The term "all provisions of the law" is intended to extend
beyond the Penal Code. This term refers to all statutes,
regulations, court decisions, etc.
WHAT IS THE EFFECT OF CHANGING THE MEANING IN LAW OF "NOT
GUILTY" TO "NOT PROVEN" IN "ALL PROVISIONS OF THE LAW"?
According to the author:
Although this bill changes the verdict option of
"not guilty" to "not proven," it does not change
the meaning of the verdict. In other words, for
all intents and purposes, a verdict of "not
proven" will function the same as a "not guilty"
verdict functions now.
The author included this clause with the intent of making the
law consistent in meaning. This clause may, however, complicate
the law. A California Law search, which included 29 codes
covering various subject areas, the State Constitution, and
Statutes, found 151 references to "not guilty." These
references range from the Business and Professions Code to the
Welfare and Institutions Code.
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