Acquittal / Freispruch

There was recently a discussion in the comments at Jurastudentin’s blog on whether there is any difference between the common-law jury verdict of ‘not guilty’ and the German acquittal (Freispruch).

A commenter would have preferred the wording ‘Andreas Türck ist … nicht schuldig’ to ‘Andreas Türck wird freigesprochen’. The question arose whether the wording is different in the USA and Germany.

bq. In den USA sagt man “not guilty”, was aber noch lange nicht “innocent” heißt. Bei einem “not guilty” sind bei weitem nicht alle Zweifel ausgeräumt. Würde man aber “innocent” sagen, würde man eindeutiger davon ausgehen, dass die Unschuld erwiesen ist.

bq. Im Deutschen sind “nicht schuldig” (“not guilty”) und “unschuldig” (“not guilty/innocent”) nicht wirklich unterschiedliche Begriffe. Sie können wohl beide wie ein englisches “innocent” klingen, bei dem so gut wie alle Zweifel ausgeschlossen wurden. Darum denke ich, dass man auf der sichereren Seite ist, wenn man im Deutschen von “Freispruch” spricht, da man zwar nicht ausschließt, dass noch Zweifel bestehen, aber man spricht die Person wenigstens von den Anschuldigungen frei und entlastet sie.

In my experience the wording is sometimes ‘The defendant is not guilty’ and sometimes ‘The defendant is acquitted’ – both mean the same thing. The jury’s verdict is worded ‘not guilty’, though (although there was a ‘not proven’ in Scotland, but to go into that here would confuse the issue).

There’s a summary of the meaning of ‘not guilty’ on the site of Hugh Duvall, an Oregon lawyer who is fond of the colour green.

bq. A verdict of “not guilty” can mean two entirely different things. It can, of course, mean that you believe the defendant (I would use my client’s name) is innocent. However, it can mean something entirely different. A verdict of “not guilty” can mean a verdict of “not proven.” Even if you are very sure the defendant is guilty, but the state has not proven it “beyond a reasonable doubt,” then it is your sworn duty to return a verdict of “not guilty.”

The Jurastudentin discussion came up in the context of the trial of Andreas Türck for rape, and it’s difficult to regard a not guilty decision in many rape cases as anything other than ‘not proven’ (The term verdict is used only for juries, not judges). It was referred to by someone as ‘Freispruch zweiter Klasse’.

We don’t use the term ‘innocent’, but the press will, and for example Michael Jackson’s defence counsel used it. It seems to me if one were to insist on the court finding someone ‘innocent’, it would be necessary for the court to try to find out the truth, and that is something that German courts (try to) do but common-law ones don’t. Common law criminal trials are more like a battle between two sides, in which the prosecutor has to convince jury (or judge) that the defendant is guilty beyond a reasonable doubt.

Here’s some advice for journalists on using the correct terms.

On the Scottish not proven verdict, see here for the history, here for a forum discussion.

12 thoughts on “Acquittal / Freispruch

  1. I don’t really see the implication of a “not guilty” verdict meaning “innocent”. There’s always a lot of insistence on “reasonable doubt”.

    But I did have a similar problem when I blogged a French court case at the beginning of the year. The French term for “Freispruch” is (modulo grammar) “non-lieu”, i.e. literally a declaration that something has not taken place (which of course doesn’t imply innocence: it’s in the eyes of the law as good as if the crime hadn’t taken place).

    My problem for translating this by “acquittal” (or the respective verb) was that the English term implies that the verdict is given by a jury, while in the case I was interested in, there was a college of three judges. No jury.

    So I’m unsure why you’re saying that “not guilty” and “acquittal” refer to the same legal reality.

  2. Chris,

    Are you referring to the USA, where there is so often a jury? We have acquittals in Britain both with and without juries. The word ‘verdict’ is used only for juries (there’s a German word Wahrspruch that is similar but not used today), but there’s no such restriction for acquittal – it’s just the opposite of conviction.
    What is ‘modulo grammar’?

  3. Chris, I’ve been looking at the few references I have here, and it looks as if non lieu is something like Einstellung des Verfahrens. The Bridge / Council of Europe FR>EN law dictionary says non-lieu – discharge (by the investigating judge) of the accused; termination of the proceedings, i.e. when the accused is not committed for trial. I’ll make an entry on Einstellung some time, as there are various ways of translating it.
    Martin Weston’s ‘An English Reader’s Guide to the French Legal System’ (which is more of a discussion of translation), which is a few years old, says that depending on the court, acquitted is acquitté or relaxé, and also renvoyé des fins de la poursuite.

  4. Thanks a lot! I wasn’t aware that “acquittal” can be uses if it’s the judge(s) that do the acquitting. (I’d been mulling that one over quite a bit.)

    As for “non-lieu”=”Einstellung des/eines Verfahrens”, hum; I’m not a lawyer, nor am I a translator (even though I’ve sometimes encroached on your territory in small ways). But in France, the trial goes to the very end, and then it’s either the judge, or the three judges, or the jury who deliberate, and then they can decide on “non-lieu” — and the defendant is free to go.

    On the other hand, “relaxe” is used, too. I ought to ask one of the law bloggers what the difference is. (I thought it was mainly the press who uses “relaxer” and “acquittement”.)

    When the investigating judge (or a higher instance, in complicated cases) terminates the proceedings (or part of the proceedings) prematurely, this is usually called “annuler la procédure” or “classer le dossier”. Which happens regularly “pour vice de procédure”, i.e. because something hasn’t been done right, a perquisition without a proper warrant, for example, or because the entire issue is “non recevable” (e.g. the original complaint has been filed with the wrong court, or the facts don’t fall under whatever legal category they have been classified under).

  5. (Oh, and “modulo grammar” just means that the grammatical categories of the words I used aren’t precisely the same as the original words. Like “modulo” in mathematics: 5 = 1 modulo 2 etc.)

  6. In that case, discharge is correct. In England we have absolute discharge and conditional discharge. I seem to recall it’s a problem to translate into German. Dietl has Entlassung and Freilassung.
    Relaxer or acquitter seems to depend on what court was involved.

  7. Chris W. has a point about the reasonable doubt vs. innocence. Acquittal in an Eng. criminal trial can mean simply there is not enough evidence to convict.

    In Eng. & Wales, there are provisions for dredging up ‘tainted acquittals’ in subsequent criminal trials: ss. 54-57 of the UK Crim. Proc. & Investigations Act 1996. I can’t see that this is poss. in German-speaking countries with a Freispruch.

    Abs. & cond. discharge are good ways round it. Nonethless, discharge – with a bind-over – is still a sentence at the bottom of the sentencing pyramid on *conviction*: s.1A UK Powers of the Crim. Courts Act 1973.

    Looking at square pegs in round holes, I notice there are a few langs. that use the same word for acquittal in a crim. case and entering judgment i.e. finding, for a party to a civ. case. I’ve seen quite a few translations where a civil litigant has been ‘acquitted’.

  8. I don’t think Chris says anything different from what I did. And this was exactly what the court said in the Türck case: there’s not enough evidence to convict.

    Yes, of course, I am not suggesting conditional discharge as a way round it, just indicating its existence. There isn’t always a bind-over, is there? Absolute discharge does not imply nothing happened. What would you do other than using Bridge’s suggestion? I think discharge is a good translation for ordonnance de non-lieu. Weston likes it too, and would even prefer ‘discharge order’.

    Re the same word in some (which?) languages for acquittal in crim. and judgment for in civil cases: in German the opposite word, verurteilen, has to be dealt with differently depending on whether it refers to conviction, sentence, judgment against plaintiff, order to pay damages etc. That’s similar to what you say about the mistranslation of words meaning acquittal. One is constantly seeing ‘he was sentenced to damages’ or ‘he was convicted of breach of contract’!

    I still don’t understand the modulo…probably born too soon.

  9. For ‘modular’ clarification:

    1. Discharge/bind-over i.e. bzw. = either/or are at the bottom of Eng. sentencing pyramid. An old biddy who forgetfully slips a tin of cat food into her shopping basket is still prosecuted because it is the supermarket’s policy: ‘we always press charges’. The mag. gives her an abs. discharge. Quarrelling neighbours slog it out in the back garden: they are bound over to keep the peace.

    2. Chris W.: Eng. crim. juries do not acquit or convict: they find guilty or not guilty. The judge can ‘discharge’ i.e. throw out the jury and acquit or convict the accused/defendant, despite the jury’s verdict: I agree with that term, Margaret.

    3. Bridge – aided and abetted by Martin Weston – misuses the term discharge (as a low-level sentence on conviction) for non-lieu that is more akin to a nolle prosequi on a crim. offence or a ‘discontinuance, termination, disposal or settlement’ of a civil claim.

  10. The reason they misuse ‘discharge’ is because nolle prosequi connotes the Attorney-Geeral, so the term evokes the wrong things – as does discharge, I suppose.

    The judge can discharge the jury and there is usually a new trial. I don’t know any details about the judge overruling the jury, but the Americans have the term ‘directed verdict’ (a verdict in the USA may be a civil verdict, of course).

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