New Verdict Option: Guilty, Innocent or Undetermined

The criminal justice system of the United States allows a finding of guilty or innocent. This has resulted in such verdicts as innocent for O. J. Simpson and guilty for hundreds of prisoners who have been set free due to exculpating genetic evidence, often after serving significant portions of the sentences they were given. Why are guilty or innocent the only verdicts that can be delivered? Why also is a hung jury such a big problem for a Judge?

I submit this was due to the short sightedness of the law makers to include a verdict of "undetermined" in the choices that could be issued at the end of a trial or by a deciding Judge in other cases. This is how this verdict would work.

First if the Defendant cannot be proven guilty "beyond a reasonable doubt" in major crimes or beyond the "preponderance of the evidence" in lesser crimes and even civil suits. Yet there is significant but not definitive evidence pointing at the possibility of the Defendant's guilt, a verdict of undetermined can be handed down by the jury. The verdict will go on the record of the Defendant saving many hours of court time and possibly guilty or innocent verdicts. Yet a undetermined verdict would allow for a Judge or at the request of a District Attorney to allow for an additional trial providing significant new evidence arises in the future but within the statute of limitations for that crime. In short a verdict of undetermined would not be affected with the double jeopardy protection of the Constitution. Only one retrial would be allowed per Defendant per criminal accusation. This would prevent abuse by District Attorney's Office to keep a Defendant in court permanently as a punishment in itself.

In effect a "hung jury" allows the District Attorney to immediately call for a second trial or acquit. Usually this is decided on cost justification based on the results and costs of the initial trial both financially and politically.

The major argument against this third verdict is that the accused will be freed and can continue his or her criminal activity, or in the case of an abusive spouse result in the injury of death of the victim. However, upon further thought if there is not enough evidence to convict, wouldn't this alleged perpetrator be capable of the same actions? Worse yet if the defendant was judged innocent in the first case, the evidence from the first trial may not be admitted as additional evidence in the second trial since the first case was a done deal and the Defendant declared innocent. A verdict of undecided would allow evidence from the first trial to be added as admissible in the second. This would make the Defendant think harder before committing a second crime of a similar nature.

Beyond the flexibility of an undecided finding, millions or even billions of dollars of judicial expense could be saved and trials made shorter on the average. In fact may be more trials but each will be shorter in duration and cost. The timeliness of a fair trial would be improved as well.

We would like to think of the infallibility of our legal system and so can't help but be drawn to the age old dual verdict system of guilty or innocent. Yet we see that this just is not functioning the way we had thought it was. Genetic testing has freed many of the system mistakes from before we had this tool. The number of mistakes is significant. We fear handing down the death penalty so much to a possibly innocent person that we tend to acquit Defendants on even the slightest hint of a doubt, even if we are 99.9% certain of guilt. Since we can't retry a person due double jeopardy, he or she is free forever, even if new evidence is found, even if they confess. A verdict of undetermined would solve these problems.