talking terminology | Leslie Budewitz

Last week, I gave you part one of lexicographer and legal writing guru Bryan Garner‘s comments on the phrase “not guilty” and its common-but-improper substitute, “innocent.” Today, his rant on another common misuse of the phrase, the implication that that a jury’s verdict of acquittal is itself “beyond a reasonable doubt,” rather than a finding that the prosecution did not prove guilt beyond a reasonable doubt.

Here’s what Garner says, in his daily usage blog.

“Not guilty beyond a reasonable doubt.”

This phrasing is ambiguous. The standard by which a jury decides criminal charges is this: a defendant is guilty only if the evidence shows, beyond a reasonable doubt, that he or she committed the crime. Otherwise, the defendant is not guilty. Thus, we say that a defendant was not found “guilty beyond a reasonable doubt.”

But it doesn’t follow that we should also say that a defendant was found *”not guilty beyond a reasonable doubt.” Is that “not guilty (beyond a reasonable doubt)” or “not guilty-beyond-a-reasonable-doubt”? The latter idea makes more sense — e.g.: “The question is whether a judge can reach a contrary conclusion on the second charge — deciding that though a defendant was not guilty beyond a reasonable doubt, he nonetheless probably committed the crime.” “High Court’s Highhanded Decision,” Chicago Trib., 26 Jan. 1997, at 20.

Yet many readers will misconstrue the phrase. Thus, regardless of the writer’s intention, some will think of * “not guilty beyond a reasonable doubt” as a strong vindication — rather than as the slight vindication it is (we, the jury, had the slightest bit of reasonable doubt, so we had to find the defendant not guilty). The writer might have gotten it right in the following sentence, but nonlawyers are likely to be misled: “When you know all the facts [of the O.J. Simpson case], you’ll see that the prosecutors failed to meet their burden of proof, and how, contrary to the court of public opinion, the jury arrived at their verdict of ‘not guilty beyond a reasonable doubt.’ ” Patricia A. Jones, “Uncensored: Authors Answer Questions Left with Simpson Verdict,” Tulsa World, 1 Dec. 1996, at G5.

If somebody is found not guilty, say “not guilty.” Omit the standard (“beyond a reasonable doubt”) to prevent a miscue.”

For more on reasonable doubt and how to recognize one, read the Q&A “I know the prosecution must prove a criminal defendant’s guilt beyond a reasonable doubt, but what is reasonable doubt?” in my guide for writers, BOOKS, CROOKS AND COUNSELORS: How to Write Accurately About Criminal Law and Courtroom Procedure (Linden/Quill Driver Books), winner of the 2011 Agatha Award for Best Nonfiction.

Regular 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.)