Justice In-Between: A Study of Intermediate Criminal Verdicts

Author: Federico Picinali
Publisher: Oxford University Press, 2022.  304 pages.
Reviewer: Paul Roberts | April 2024

In Beccaria’s justly celebrated pean to progressive penal modernism, there lurk several seemingly incongruous remarks relativising punishment to proof. “[T]hose who have been accused of a terrible crime and who are very likely, but not certainly, guilty, ought to be banished,” proclaims Beccaria. Moreover, “one who under examination obstinately refuses to answer the questions put to him, deserves a penalty which should be fixed by law, and be of the severest kind, in order to prevent men from avoiding their public duty in this way” (On Crimes and Punishments, Bellamy ed (1995) [1764] § 24, § 38). Is the high priest of Enlightenment penal rationalism really telling us that proof short of the standard required for criminal conviction should result in the lesser penalty of banishment and that suspects exercising their privilege against self-incrimination deserve severe punishment for their obstinacy? Apparently so. It seems that even the most progressive of eighteenth-century reformers had yet to bend their minds around modern conceptions of procedural due process (for historical and intellectual context, see Antje du Bois-Pedain and Shachar Eldar (eds), Re-Reading Beccaria: On the Contemporary Significance of a Penal Classic (Hart, 2022)). Punishment without full proof of wrongdoing, in particular, is patently unjustified and now safely interred in the tombs and tomes of legal history, at least for states with plausibly liberal credentials and minimal respect for human rights.

Not so fast! In Justice In-Between, Federico Picinali takes on the daunting task of persuading an almost inevitably sceptical readership that intermediate verdicts in criminal trials could be justifiable. Chapter 1 is devoted to establishing that “intermediate verdicts are not a fanciful construct,” in the sense that historical examples can be found in ius commune procedural mechanisms (suspension of res judicata and ‘extraordinary’ punishments) and in the Italian verdict of acquittal per insufficienza di prove, both of which survived for longer than might be guessed. Then there is the Scottish third verdict of ‘not proven,’ which persists to this day – albeit mostly unloved and slated for extinction. Legal history and comparative legal scholarship plainly demonstrate that intermediate verdicts have existed in the past and can still be found today in isolated locations. They are therefore not ‘fanciful’ in the sense of being merely theoretical constructs. But even the combined weight of medieval jurisprudence, Beccaria’s (surprising) endorsement and a few residual procedural anachronisms would barely raise a doubt that advocating intermediate verdicts for contemporary criminal trial systems would be fanciful law reform policy. In fact, Picinali’s main objective in this scene-setting chapter is to demonstrate that debates surrounding the legitimacy of intermediate verdicts have typically been inconclusive and question-begging. This is sufficient to motivate more systematic jurisprudential inquiry.

Picinali’s is an unabashedly theoretical study. He explains that the ‘”primary goal” in writing this book was “to raise a question and bring it to the attention of those working in [binary verdict] jurisdictions who may never have considered it,” so that even implacable sceptics might agree that “there is something valuable to be gained from addressing the question” (p. 243). There are few questions which are not even worth considering, but is this particular question sufficient to sustain the reader’s attention for 250 pages? Picinali is disarmingly honest and fair-minded in developing his arguments. He repeatedly stresses the limitations of his thesis and points out where, occasionally, he wishes to finesse positions defended in earlier work. As a criterion of success for a monograph, however, ‘raising a question’ might be regarded as excessively deflationary. Indeed, the deflationary turn is one of Picinali’s favourite theoretical manoeuvres. Whilst theorists will appreciate Picinali’s technical skill and virtue in deploying it, more practically-minded readers might be disappointed by the absence of more tangible results.

The book’s central argument comprises four main phases each with its own chapter, topped and tailed by a concise Introduction and even shorter summarising Conclusion. First, in Chapter 2 Picinali seeks to head-off the recurrent objection that intermediate verdicts are incompatible with the presumption of innocence. Here, Picinali draws on his own ‘deflationary’ conception of the presumption of innocence to argue that there is no genuine incompatibility, because intermediate verdicts do not undermine or contradict any procedural mechanism that the presumption of innocence requires. Next, Chapter 3 argues that maximising (expected) value within a decision-theoretic framework is compatible with any plausible rationale for criminal punishment, at least for the purposes of theorising criminal adjudication, whether consequentialist or deontological in its broader value commitments. Although the decision-theoretic calculus may appear consequentialist on a superficial reading, when properly operationalised it embodies a principle of rationality applicable to any scheme of value, including, for example, the values embedded in retributive theories of punishment.

Shifting gears into the third phase of argument, Chapter 4 develops a positive case for intermediate criminal verdicts, employing compact decision-theoretic models and calculations. Picinali demonstrates his central contentions with intuitive graphs and simple equations, relegating more advanced formulae to a technical Appendix (mercifully sparing generalist readers from algebraic overload). With some fairly parsimonious assumptions, it can be shown that intermediate verdicts will maximise (expected) value over a binary system of verdicts when ‘the superiority condition’ is met. This is a notable contribution to theorising standards of proof in legal adjudication, but it needs to be unpacked with some care.

The probability range demarcated by the standard of proof for an intermediate verdict must ex hypothesi fall somewhere between the higher range in which conviction would maximise (expected) value and the lower range mandating (full) acquittal. Conventional binary verdicts allocate the entire probability space into (only) two portions, separated by a single standard of proof. Intermediate verdicts introduce a tripartite division of the probability space, demarcated by two proof standards: the higher for returning a verdict of ‘guilty’, the lower for pronouncing whatever the intermediate verdict is called. The key insight encapsulated in Picinali’s ‘superiority condition’ is that the expected value of an intermediate verdict needs to be closer to the expected value of a conviction when the accused is guilty than to its expected value when the accused is innocent, preserving something akin to the asymmetry encapsulated in the classic common law standard of proof ‘beyond reasonable doubt’ (sometimes, not always helpfully, expressed as ‘the Blackstone ratio’). Picinali contends that the superiority condition could be met by an intermediate verdict that takes the form of a conditional acquittal, permitting retrial if substantially probative evidence of guilt is subsequently discovered. Conditional acquittal plausibly satisfies the superiority condition insofar as it “consists in harder treatment if the defendant receiving it is guilty than if they are innocent” (p. 161). How so? Because the prospect of discovering new evidence sufficiently probative to trigger a retrial is, all things considered, substantially more likely if the accused is guilty (and thus may have left incriminating evidential traces to be found) than if the accused is innocent (in which case, one may speculate, the newly incriminating evidence would have to be planted, falsified or otherwise misleading).

Finally, in Chapter 5, Picinali anticipates some predictable objections to his justificatory rationale, and seeks to nip them in the bud. He considers, for example, that a three-verdict system of criminal adjudication might be excessively complex, that conditional acquittal might not qualify as ‘hard treatment’ in all cases, and that adaptive behaviour by prosecutors might neutralise the intended effects. Through a combination of selective confession and avoidance and tu quoque trading of hypothetical projections the central thesis is preserved intact. One objection that American readers might find particularly informative, from a comparative perspective, is the argument that exceptions to the double jeopardy prohibition enacted in England and Wales and replicated in many other common law jurisdictions already equate to the third verdict for which Picinali contends. No such mechanism could be introduced in US constitutional criminal procedure, owing to the Fifth Amendment’s Double Jeopardy Clause. Regardless, Picinali insists that the two mechanisms are not procedurally fungible; and moreover, of the two, his proposal for a third verdict of conditional acquittal is superior to procedural mechanisms in binary verdict systems permitting acquittals to be quashed after the event.

There is much to admire in this exposition, especially from a methodological standpoint. Though rooted in a wealth of historical and theoretical learning, the text itself is clear and uncluttered (if possibly a mite repetitive at times) and a fine exemplar of accomplished jurisprudential theorising. Aspects of the argumentation display novelty and ingenuity, notably in synthesising heuristics more commonly confined to discrete disciplinary silos. Thus, Picinali presents a probabilistic approach to judicial evidence as a simple extension of logical reasoning – which is exactly what it is, albeit legal scholars are prone to viscerally adverse reactions before you could utter ‘Bayes Theorem.’ There is real skill in making the medicine go down before the patient has even realised they are under treatment. Likewise, card-carrying deontologists about criminal punishment may be inclined to reject the decision-theoretic framework out of hand, on the premiss – which Picinali cogently falsifies – that any kind of maximising metric is irremediably consequentialist. If I were to adopt all of his methodological assumptions, I might also find Picinali’s conclusions compelling. As it is, my own critical assessment is that this book represents an exceedingly stylish and theoretically accomplished exercise in flogging a dead horse.

Before briefly summarising why I remain firmly sceptical, one major self-imposed constraint should be highlighted. Picinali sets out to develop a completely general, theoretical argument for intermediate verdicts. But this already implies that he cannot justify the introduction of intermediate verdicts in any particular legal system, because that would require him to engage with the idiosyncratic institutional structures, procedural heritage, and professional cultures of particular jurisdictions. The decision-theoretic heuristic cannot show that ‘the superiority condition’ is actually satisfied in any institutional context such that introducing an intermediate third verdict would be desirable: “showing that an intermediate verdict satisfies the superiority condition is providing a justification for this verdict; showing that it satisfies the heuristic requirement is providing only a prima facie justification” (p. 239). Such equivocation is greatly amplified by the fact that Picinali wants to show that the decision-theoretic heuristic is suitable for any plausible theory of punishment. It follows that he cannot, and does not, defend any particular theory of punishment, but rather attempts to sketch out its application to a potpourri of prominent penal theories and rationales, emphasising that what matters is the rank ordering of outcomes and their relativities, rather than the actual values assigned to particular outcomes (which are inherently controversial in penal theory). He is consequently reduced to repeating the kind of conclusion that could only truly appeal to theorists: “satisfying the heuristic requirement is no guarantee of actual superiority. My case for conditional acquittal, then, is a prima facie case only. A fully-fledged value function is needed to assess whether it is, indeed, a superior intermediate verdict. In other words, its superiority depends on the theory of punishment endorsed” (p. 192).

Picinali suggests that “a decision-theoretic argument for the selection of the standard of proof… has enjoyed considerable support in evidence law theory” (p. 139), and hopes to leverage this disciplinary credibility by demonstrating that the self-same approach implies that a three verdict system could outperform the two verdict model in maximising value. In fact, this methodological orientation is not popular in Evidence scholarship more generally, being largely confined, roughly speaking, to those sections of the legal academy where Law and Economics is well-represented: mainly US law schools, and law schools directly influenced by them. Picinali’s decision-theoretic analysis augments, and in some respects challenges, more conventional economistic theorising in Evidence scholarship. Conversely, any reader familiar with standard critiques of Posner-inspired Law and Economics might readily anticipate what I am about to say, and will also appreciate that these are methodological objections to decision-theoretic modelling tout court rather than ad hominem objections to Picinali’s applications.

Decision-theoretic models have a problematic relationship to data in at least two pertinent senses. First, the general model is treated as being prior to specific data. But there is no obvious reason why we should prioritise fidelity to abstract models in evaluating criminal justice processes. For example, I wouldn’t frame the inquiry in terms of whether some feature of criminal adjudication, say the presumption of innocence or trial by jury, is value-maximising in some general, acontextual sense. I would ask instead whether these principles, maxims or institutions are normatively justified relative to our procedural traditions and values. Our traditions are very clear and consistent on the number of verdict options in criminal cases: the choice is between acquittal or conviction, with no third option (other than a hung jury and a retrial). This is not to say that even this foundational feature of criminal trial procedure could never change. The point is that an argument establishing the formal rationality of the possibility of a third verdict will never constitute a persuasive argument for reform. It may well be rational, in the sense of value-maximising given some idiosyncratic specification of value, for certain jurisdictions to have no element of lay fact-finding in criminal adjudication. So what? Nothing consequential follows for the design or reform of criminal adjudication in jurisdictions with long traditions of criminal jury trial.

A second way in which decision-theoretic models traduce data is by insisting that all existing data can be accommodated, and that any missing data should be found. Picinali flirts with this bluster when he suggests, in relation to the potential impact on jury behaviour of introducing an intermediate verdict, that “this is an issue that requires more empirical information, tailored to the specific intermediate verdict that one envisages” (p. 236). I cannot imagine how empirical information of the type that would be required to settle this issue could ever be generated (though empirical data from well-designed studies can certainly inform such debates). Experimental psychologists typically conceptualise the issue in terms of influences on individual juror voting behaviour, whereas real juries are exercises in iterative group deliberation and the subtle dynamics of collective decision-making. Strangely, even Picinali doesn’t pause at this point in the argument to remind readers that Scottish juries decide by simple majority or that the ‘hold out’ juror issue, dramatized by 12 Angry Men (p. 236), is not really a problem for jury trial systems such as England and Wales in which 10-2 majority verdicts are routinely accepted. These discrepant institutional details could strongly influence patterns of trial outcomes (and their associated value functions) in particular legal systems, casting further doubt on the merits of generic modelling. On other occasions, Picinali deploys the contingency of data-free speculation against his own putative critics—e.g., in relation to the supposed deterrent effects of particular verdicts. (p. 210­–11). To the extent that such contests usually produce stalemate in a tournament of counterfactuals, I am with Picinali. But the contingency of speculation must be underlined. For example, Picinali anticipates – and smartly refutes – the objection that the possibility of a third verdict would result in more cases going to trial (because prosecutors could ‘win’ at the lower probative threshold for a conditional acquittal), whereas my intuitive worry is that the possibility of losing two ways might impose additional pressures on defendants to plead guilty. The contention that an opponent’s argument “requires reliance on data that are difficult to gather, or simply not available” (p. 214). authorises both of us to pump our own, divergent, intuitions, and nobody can refute either of us, except by layering up further speculations.

I sympathise with Picinali’s insistence that vague appeals to the presumption of innocence are not decisive against his proposal, inasmuch as the presumption of innocence is itself a controversial notion requiring further elucidation before it can be said to block procedural innovation. However, Picinali too quickly concludes that there is no plausible account of the presumption of innocence that would invalidate intermediate verdicts, partly because his broader survey of candidate theories entertains only an implausible interpretation of traditional procedural values according to which the presumption rules out any burdensome imposition on the accused prior to a finding of guilt (pp. 59–60). A more nuanced version of this argument, treating the presumption as a normative ground of particularised procedural doctrines, would not be vulnerable to Picinali’s pro forma reductio. Direct consideration of the practicalities of implementing the decision-theoretic model is afforded a little over four (pp. 221–25) of the c.250 pages comprising the main text. Here, Picinali breezily observes that, in everyday life, we put meaningful numbers on such things as stars for goods and services, marks for student essays and grades in professional performance reviews (p. 222), so we should be able to come up with a grading system for criminal verdicts, too.  This is the point in the unexpected journey where, for me, the doddery old nag flatlines. I see no prospect whatsoever of coming up with serviceable language for an intermediate third verdict which would, in any meaningful or reliable way, map onto a theoretical value function for criminal adjudication in England and Wales (or, frankly speaking, anywhere else). Accumulated knowledge and (vicarious) experience of criminal adjudication inform me that it is just about credible to instruct juries that if they are sure of guilt, on the basis of the evidence they have heard in the trial, their collective verdict should be guilty; but otherwise they must acquit. Introducing further options for criminal verdicts would most likely only perplex decisionmakers, unnecessarily complicate trials, cloud the expressive content of penal messages, and open up criminal adjudication to more of the inconsistency and arbitrariness that we bemoan when forced to reduce complex multifactorial evaluations to the bogus precision of a number.

The final verdict on this book? That would depend on a reader’s perspective. Evidence law and penal theorists will be the most receptive, and those already working within the decision-theoretic paradigm will perhaps extract the greatest value from this systematic, rigorous and unconventional application. At the other end of the spectrum, pragmatic law reformers are least likely to be impressed. My own assessment is intermediate: I am persuaded that the question merited exploration—curated by a gifted guide with some memorable lines, the intellectual tour was worth taking—but my fleeting curiosity in these forensic ruins is unlikely to motivate participation in any future archaeological excavations.

 

 

Paul Roberts is Professor of Criminal Jurisprudence at the University of Nottingham School of Law