not-guilty is not the same as innocent

The basis for practical skepticism

Most people assume not-guilty is exactly the same as innocent, and while thinking in those terms is generally useful, it’s not precisely correct. If they were the same, then why do many legal systems insist on rendering “not guilty” verdicts, instead of “innocent”? Perhaps there’s a reason.

My contention is that legal systems operate on different levels, one for ordinary citizens, and one for people who have some understanding of philosophy of law. A jury of ordinary citizens does not need classes on jurisprudence, all it needs is simple instructions, and thus the reasons behind legal concepts are not explained to them, they are merely instructed like they were 5.

Burden of proof

Most of law rests on the philosophical concept of burden of proof, which—although is incredibly simple—most people get it wrong all the time. To put it simply: the person who makes the claim has the burden of proof.

So, if I claim that tomorrow is going to rain, I have to provide evidence for my claim. Simple.

But what happens when somebody makes a claim but doesn’t want to provide evidence? These people immediately demand that you provide evidence against their claim. Most people fall for this dupe—probably due to our instinctive desire to be right—but it’s a fallacious tactic called shifting the burden of proof.

If you manage to catch this trick and pass the ball back to your interlocutor, he might retort that you are claiming that tomorrow is not going to rain, therefore you are making a claim, and therefore you have the burden of proof. Gotcha.

The subtle detail that many people miss is that you don’t have to make a claim. Yes, reality is binary: either it rains or it doesn’t, but you don’t have to make any claim about that. You can say “I don’t know”.

Once you realize that there are three options (true, false, uncertain) it’s easy to see who actually has the burden of proof. If Peter claims X is true, he has a burden of proof, if Allison claims X is false, she has a burden of proof, and if Hector is uncertain about X and makes no claim, he doesn’t have any burden of proof. Notice that two people can have a burden of proof at the same time.

What happens if Peter then says he is on the same position as you and says he is uncertain that tomorrow is not going to rain? Then there’s no debate because nobody is making any claim.

How does this map to common law? The prosecution has to make the claim that the defendant is guilty, the defense on the other hand doesn’t have to claim innocence. Therefore the prosecution always has the burden of proof, the defense does not.

The reason law is designed this way is that if the burden of proof was on the other side, then if the defense fails to prove innocence, the defendant would be deemed guilty (or rather not-innocent), even if in truth culpability was uncertain.

So the direction of the burden of proof is directly related to the uncertain case: what do we want to happen when neither guilt nor innocence is proven? In other words: what is the default position?

This quote explains the rationale:

It is better that ten guilty persons escape than that one innocent suffer. — William Blackstone

We don’t want possibly innocent people in prison, so we err on the side of innocence.

Presumption of innocence

The phrase “presumption of innocence” is used to emphasize that the prosecution has the obligation to prove each element of the offense and that the accused bears no burden of proof. Does this mean the defendant is deemed truly innocent by default? No.

The defendant pleads “not guilty”, and the verdict reads “not guilty”, it’s never “innocent”.

If the prosecution fails to meet its burden of proof, the defendant is acquitted regardless of what the defense does. If the defense proves innocence the defendant is acquitted, but if the defense fails to prove innocence, the defendant is also acquitted, so it’s irrelevant what the defense does in this case, the status was always “not guilty”.

Why are juries told about the “presumption of innocence” then? Consider the uncertain case: the prosecution failed to prove guilt, and the defense couldn’t prove innocence either. In some jurisdictions the verdict would be “not proven”, but for example in USA that’s not available, only “guilty” and “not guilty”. Well, if the jury is told to “presume innocence”, then when culpability is uncertain they would go for “not guilty”, this is the desired result. If the jury equates “not guilty” with “innocent” it literally doesn’t matter: they still arrive to the desired verdict.

Judges know better though. They understand that “not guilty” does not necessarily imply innocence, it could be an uncertain case, but they don’t need to teach that to every jury. This is sort of like an adult asking a child what did Santa Claus bring her for Christmas: all adults know what that truly means, but the children don’t need to know.

Juries don’t need to know the difference between “not guilty” and “innocent”.

Formally

Our universe is {uncertain,innocent,guilty}. We can define not-guilty as {innocent,uncertain}, therefore innocent ∈ not-guilty, and uncertain ∈ not-guilty. Moreover guilty′ is {innocent,uncertain}, so the same as not-guilty.

All we really care about is guilty, anything else means acquittal. Pretty simple.

Examples

Could this notion of not-guilty ≠ innocent be helpful in real-life situations? Yes it can.

Recently I discussed the 2022 missile explosion in Poland, and I found it curious that everyone seemed to jump to conclusions. The question on the day of the incident was: did Russia attack Poland? This was important because if it did, Poland could invoke NATO’s Article 5 and potentially all members could assist Poland with armed forces. I was skeptical, everyone else assumed Russia did attack Poland, because “what else could it be?”.

My question was simple: where is the evidence? As is typical some people tried to shift the burden of proof, others provided evidence but not of what was claimed, and a few provided an article from Associated Press as evidence: Russian missiles cross into Poland during strike. Of course, an article is not evidence of anything, and if anyone bothered to actually read the article they would have found that the article’s “evidence” was that one guy said so, so essentially hearsay.

Now, given that zero evidence was provided, my verdict was what any rational person should conclude: not-guilty. Does that mean I believed Russia was innocent? No. It merely meant that the burden of proof was not met. Maybe they did launch the missile, maybe not, who knows.

Within hours the title of AP’s article was amended, over and over, each time making it more clear it was uncertain who launched the missile. Eventually they deleted the article, and now there’s a correction instead: Correction: Russia-Ukraine-War story:

The Associated Press reported erroneously that Russian missiles had crossed into Poland and killed two people.

So I was right. Well, no, because I did not make any claim, but they were wrong. There’s a difference between being right and not being wrong.

You cannot lose if you don’t play.

If I had “presumed innocence” and claimed that Russia did not launch that missile, I would have been right, but I had no evidence for that and I would have failed to fulfill my burden of proof, which I would have had. And given that I had no evidence for that claim, I very well could have been wrong. That’s why it’s not reasonable to assume innocence.

The default position is not the opposite of a claim, it’s the absence of a claim. If Peter claimed Russia did launch the missile, he would have a burden of proof, but if Allison claimed Russia did not launch the missile, she would have a burden of proof as well. Only the person not making any claim (i.e. me) would not have a burden of proof.

A more debated position is the existence of a god. People who claim a particular god exists have a burden of proof—regardless of their incessant attempts to shift the burden of proof. But people who claim that no god exists also have a burden of proof. The default position is to not make any claim about god, in other words: agnosticism.

The default position is: who knows.

Simply

I flip a coin, the reality is binary: {heads,tails}, but your belief is not: {uncertain,heads,tails}. Do you believe the coin landed heads?

The fact that you don’t believe it landed heads doesn’t imply that you believe it landed tails. There’s a third option, and that’s what every rational person should go for: the default position, unbelief, uncertain.

Wrapping it up

In common law the default position is the same default position as in any other case: uncertain. This implies not-guilty.

The prosecution has to claim the defendant is guilty, therefore they have the burden of proof, and if they fail to meet it, the default position doesn’t change: uncertain ∴ not-guilty.

If the defendant is found innocent, then all the rationale in this article doesn’t matter, because innocent ⇒ not-guilty ⇒ acquittal. But the conclusion could be uncertain too, in which case: uncertain ⇒ not-guilty ⇒ acquittal. So innocent ⇒ not-guilty, but not-guilty ⇏ innocent.

To equate not-guilty with innocent is sort of like equating Asian with Oriental. Yes, people from East Asia are Asian, but not all Asian people are from East Asia. For example India, Russia, Iran and Türkiye. Oriental ⇒ Asian, but Asian ⇏ Oriental, therefore Asian ≠ Oriental.

The proper relationship is: Oriental ⊂ Asian, and innocent ⊂ not-guilty.

This is not just a technicality: in many real-life situations the rational conclusion is uncertain, or “I don’t know”. If somebody wrongly believes that assuming innocence is somehow rational, that person would easily shift the burden of proof. For example they might say that the default position is “god exists” and the burden of proof lies on the people who claim otherwise, including agnostics. It doesn’t matter what reason they give for this default position: status quo, common sense, obvious truth, etc. The default position cannot be anything other than uncertain. Even if a claim is “obvious”, or the status quo, the person making the claim has a burden of proof. Period.

Even in something as obvious as “the Earth is round”, the default position is still uncertain, and the person making the claim has the burden of proof. Always.

By simply being aware that every time you make a claim you need to substantiate your claim (because you have the burden of proof), it quickly becomes clear that in many instances you shouldn’t be making a claim. If you retract to the default position of uncertainty, you cannot be wrong. By the same token if somebody fails to fulfill their burden of proof that doesn’t mean they are wrong, it just means they couldn’t prove they were right. Absence of evidence is not proof of absence.

So when O. J. Simpson was acquitted, that doesn’t mean he was found innocent, it means the prosecution could not prove his guilt beyond reasonable doubt. He was found not-guilty, which is not the same as innocent. Again: not-guilty ⇏ innocent.

The fact that somebody failed to meet their burden of proof doesn’t mean they are wrong, and neither are you if you choose not to pursue a burden of proof by not making a claim. You can comfortably stay in the default position and say “I don’t know”, and more often than not that’s the rational choice.