Acquitting the Innocent

65 Pages Posted: 5 Jan 2004

See all articles by Daniel Givelber

Daniel Givelber

Northeastern University - School of Law

Date Written: November 9, 2003


The paper explores the contrast between our treatment of acquittals as counter-factual and the paucity of either empirical evidence or persuasive arguments to support that view. The little we know about acquittals provides more support for the view that the acquitted are innocent than that they are guilty. The dominant belief that the acquitted are actually guilty serves the interest of virtually all participants in the criminal justice system save the innocent defendant. It justifies in significant part of the vast disparity of resources between prosecution and defense and the Draconian treatment of those who refuse to plead. It provides a balm for the conscience of those who are repeat players in the criminal justice system to believe that acquittals are acts of noblesse oblige rather than the freeing of the innocent.

The available data does not speak to the question of whether the acquitted are "really" innocent or guilty. It cannot. What it does demonstrate is that most observers believe that the vast majority of acquittals are legally justified. Prosecutors rarely have undisclosed superior information that "proves" guilt whereas innocent defendants may possess information of which the prosecutor is unaware. The manner in which cases are screened and negotiated suggests that many of those who are factually innocent will seek trial, and, in the absence of reason to think to the contrary, these are the people most likely to be acquitted.

The current approach of punishing people for crimes of which they have been acquitted is supported by neither data nor logic and should be changed. More importantly, however, we need to re-examine the corrosive assumption that the prosecutor, not the judge and jury, makes the most accurate decisions about guilt and innocence.

Suggested Citation

Givelber, Daniel James, Acquitting the Innocent (November 9, 2003). Available at SSRN: or

Daniel James Givelber (Contact Author)

Northeastern University - School of Law ( email )

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