The Scottish Criminal Jury: a Very Peculiar Institution

One of the benefits of the comparative study of legal institutions is that it exposes the extent to which they are shaped by contingency as well as by logic or principle. What is regarded in one jurisdiction as the only possible or acceptable way of doing something is often revealed to be pure preconception. In other words, the comparative study of law can act as a balance to the unconscious ethnocentrism often displayed in legal and political ideology. For this reason, the Scottish criminal jury is of particular interest because it embodies several unique characteristics which might seem very peculiar to those familiar with other versions of the institution. In particular, it comprises fifteen persons; its verdicts may be reached on the basis of a bare eight-seven majority; and it has a choice between three different verdicts—guilty, not guilty, and not proven—which even many Scots regard as illogical and unprincipled. The main purpose of this article is to describe and discuss the Scottish criminal jury. I shall also use the above peculiarities and other aspects of the institution to question various assumptions commonly held elsewhere about trial by jury.