Talking terminology: “Innocent” is not a substitute for “not guilty”

GarnerRegular readers know I admire the work of Bryan Garner, usage master, writing teacher, and man of many lexigraphic talents. (That word probably isn’t in his terrific book, Garner’s Modern American Usage; I think I just made it up.) Regular readers also know I have a few peeves about common use—or misuse—of legal terms; if they’re truly technical, I can be forgiving—say, about the legal meaning of “malice,” which is quite different from the ordinary meaning—but if they are terms every American should know, I lose patience. So does Garner, and since our views coincide in one of his recent blog posts, I’m sharing. Or re-blogging. (The former a use, the latter a word, not in his book, either.) His audience is lawyers, but we can all learn from his rant.

“It used to be that only journalists made the mistake of writing “plead innocent” rather than “plead not guilty,” but now this phrase has made it even into judges’ writing. Lawyers should avoid the phrase, since there is no such thing as a plea of innocent. Journalists, on the other hand, avoid “not guilty”:

“Many newspapers insist on saying that a defendant ‘pleaded innocent’; they will not report that he or she ‘pleaded not guilty.’ I’ve gone to clients for many years and said, ‘That’s wrong. People don’t plead innocent; they are not found innocent. They plead and are found “not guilty.”‘ Now I realize that newspaper writers live in perpetual fear of the word ‘not’ either being dropped by a printer or being changed from ‘not’ to ‘now.’ Therefore, whenever possible, they shy away from the word ‘not,’ even at the expense of strict accuracy. . . . The lesson is simply this: Before you dismiss others’ workmanship, do understand why they have said what they have said; there may be a good reason for it.” Robert Sack, “Hearing Myself Think: Some Thoughts on Legal Prose,” 4 Scribes J. Legal Writing 93, 98-99 (1993).

Fair enough. But writers who do have enough time for careful proofreading shouldn’t sacrifice accuracy in this way.

Strictly speaking, “not guilty” and “innocent” aren’t quite synonymous. To be innocent is to be blameless. To be not guilty is to have been exonerated by a jury of a crime charged — regardless of actual blame. So in a sentence such as the following one, many can’t help thinking that the writer is blurring a distinction — e.g.: “A San Francisco jury found him innocent [read ‘not guilty’] of the charge in 1988.” Robert Hilburn, “Way Beyond Center Field,” L.A. Times, 4 May 1997, at 5.”

One of the unique features of Garner’s approach to usage is his Language-Change Index, showing five stages of changes in accepted usage. He rates “plead innocent” for “plead not guilty” at Stage 4, meaning “The form becomes virtually universal but is opposed on cogent grounds by a few linguistic stalwarts (die-hard snoots).” (Besides making you smarter, the book is a fun read.)

4 thoughts on “Talking terminology: “Innocent” is not a substitute for “not guilty”

  1. Thank you for posting that to your blog. As an attorney and cozy lover, I think people are very much confused about the terms “not guilty” and “innocent”. I think a famous example of this distinction has been the case of OJ Simpson, which we all know then went from “beyond reasonable doubt” to “greater weight of the evidence” (not sure of exact legal term in CA)..

    • Clarification: OJ was found “not guilty” in the criminal trial; he was not found “innocent”. He was then sued in a civil trial by the Goldman and Brown families for wrongful death….

      • Right-oh. Different context; different burdens of proof; different terms. (Discussed in more detail in Books, Crooks & Counselors.)

    • It’s important to keep in mind that burdens of proof in criminal cases are higher than in civil cases, because the elements of the charge or claim differ, and the stakes differ; Simpson was acquitted of the criminal charges, but found liable in civil court. The distinction is a conversation for another time!

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