Review of Daniel Givelber & Amy Farrell, Not Guilty: Are the Acquitted Innocent?
In their terrific if misleadingly titled new book, Not Guilty: Are the Acquitted Innocent?, Daniel Givelber and Amy Farrell ask a practically unanswerable question: how many defendants who are acquitted at trial are actually innocent? Wrongful convictions are surely the greater injustice, though the unknown accuracy of acquittals can impose burdens as well—not only by allowing the guilty to go unpunished but by leaving the innocent-and-acquitted with no public affirmation of their innocence, and often with a widespread assumption of the opposite. Because the standard of proof is designed to produce some acquittals for the guilty, the innocent-acquitted are lumped together with the guilty for whom the state lacked sufficient proof.
As Givelber and Farrell note, perhaps the one unfortunate side effect of the attention to wrongful convictions in recent years is to encourage an improperly narrow conception of innocence as equivalent to cases of mistaken identity. But defendants can be innocent even when they engage in relevant conduct and cause harm, because guilt also depends on fault—on one’s state of mind (mens rea), reasons for acting (e.g., self-defense), and the circumstances in which one acted (e.g., in reaction to an immediate threat). Defendants who are innocent for these sorts of reasons can’t hope for proof in the nature of definitive DNA analysis or a rock-solid alibi.