The investigators put the evidence together, find out who did it and then realise that the perp is going to get off scot-free because the evidence won't convict them. This typically involves something being excluded from the trial, so that the audience is in no doubt about the suspect's guilt.
This entry is named after the third possible verdict in the Scottish legal system, which the legal system treats as "innocent" and public opinion typically treats as "guilty"
Originally, the two verdicts open to a Scots jury were the standard "guilty" and "not guilty". However, in the 17th century, the Scottish Crown faced a rebellion by a small sect of Protestants, called the Convenanters
. Such was the brutality of the Crown's crackdown, Scottish juries refused to pass judgements of "guilty" upon Covenanters in protest.
To combat this, Scottish judges replaced the jury's role as pronouncers of guilt with that of finders-of-fact
- the jury was asked to rule on specific factual allegations against the accused, and rule only that they were "proven" and "not proven". This persisted until the 1728 case of Carnegie of Findhaven
, where Mr Carnegie was accused of killing the Earl of Strathmore. However, the circumstances persuaded the jury that it was an accidentnote
To prevent his client from hanging, his lawyer, Robert Dundas, persuaded the jury to re-assert "its ancient right" to pronounce a verdict of "not guilty", thus preventing Carnegie from hanging but still accepting that he performed the acts libelled. With time, the "proven" verdict fell into desuetudenote
and so the system is where it is now. The "Scots verdict" is sometimes translated as "Not guilty and don't do it again", which is why some Scots lawyers want rid of it and the stigma it can attach to clients. Worse, because it puts the accused at no legal disadvantage, it cannot be appealed against, so someone is "not proven" in perpetuity.
Note that while the formal "not proven" verdict is only available in Scotland, this doesn't quite capture the whole picture. For instance Senator Arlen Specter (R-PA)note
tried to vote "Not Proven" in Bill Clinton
's impeachment trial; Chief Justice Rehnquist (who was presiding per the Constitution's rules for presidential impeachment) recorded his votes as "not guilty." This is justifiable in that in American law, "not guilty" means "not proven". It does not mean innocent, whether or not the defendant really is innocent. It's up to the government to prove someone broke the law. If they can't, they go free. This tends to lead to Convicted by Public Opinion
in higher profile cases, where unless a new perp is brought up people (and the media) will tend to assume a defendant only went free because the courts were unable to prove they did it. Legally, not guilty is considered innocent, although you can be sued in civil courts (where the standard of proof is lower and where your previous "not guilty" verdict does not
act as a defence) and the government can still seize your property even if you are found not guilty. They can also sometimes charge you with "civil rights" violations, as well. And of course, we don't all live in America
, and in many European jurisdictions (including Scotland) double jeopardy is not observed and you can be tried again
if new and damning evidence comes to light suggesting your guilt. Isn't the law fun?
Compare Conviction by Contradiction
, where the detectives appear to erroneously believe the evidence is enough for a conviction.
- In the Gotham Central comics series, Dirty Cop and cop killer Jim Corrigan walks free because he was able to call in a favour from equally dirty colleagues so they'd swap the evidence; thus while the good cops could link him to the gun, they couldn't prove the gun was the murder weapon.
- Sirius Black became an example of this trope in "My Parents' Secret Keeper". He got acquitted but the wizarding world believed him to be guilty. Dumbledore was so afraid Sirius would go after Harry he even asked Remus Lupin to spy on him. Fortunately, while Dumbledore and Arthur Weasley (who was the Minister of Magic in that fic) were trying to persuade Lupin into spying, Percy appeared to tell Arthur about Scabbers being missing (Peter wouldn't stick around with an acquitted Sirius around) and the way Percy described Scabbers to Remus made the werewolf know the truth.
- This was not the only fic where Sirius becomes an example of the trope. In "These Grim Bones", because Fudge was afraid Sirius might have revealed some of the muggles caught at the explosion could have been saved had the obliviators noticed them, all Sirius could do was answering questions regarding his own guilt. Namely, he told he didn't kill Pettigrew, he didn't kill those muggles and didn't betray the Potters to Voldemort. Despite the fact Sirius stated it while under Veritaserum, Dumbledore still believed Sirius to be guilty and, being unable to prevent Sirius' acquittal, persuaded Fudge into sending a Hit Wizard or a Hit Wizard to (officially) protect Sirius from people who might decide to take justice on their own hands but (extra-officially) find and report evidence to send Sirius back to Azkaban. Fortunately, the witch who took the job was Amelia Bones, who did it so the job wouldn't be taken by someone who, hoping for a quick promotion, would forge evidence. She believes Sirius to be guilty but she's too honest to approve convicting anyone (even a Death Eater) on false evidence.
- In "Growing Up Black", when some relatives of Sirius Black found out he was never allowed to plead his case in a trial, his maternal Grandfather argued at the Wizengamot that Dumbledore's testimony was just hearsay and testimony from muggles was unadmissable. Then, when asked if he wanted Sirius to be given a trial, his Grandfather instead invoked a law stating that, as a pureblood, Sirius shouldn't be forced to stay in Azkaban for more than 30 days without a trial and, because he was, the charges he'd been sent there for should be dropped. People who still believe Sirius to be guilty usually state he got Off on a Technicality.
- In "Three Dursleys, a Potter and a Black", Sirius was acquitted and Dumbledore mentioned the blood protection so Harry wouldn't be taken away from the Dursleys. Taking advantage of the fact Dumbledore never ordered him not to move into Privet Drive and that the Dursleys love money more than they hate magic, Sirius moved into their home. When Dumbledore found out Sirius reached Harry and the Dursleys despite the wards keeping them from being found by anyone meaning to harm Harry, he assumed Sirius used some dark magic to get past the wards.
- Invoked literally in Anne Perry's The Sins of the Wolf.
- The Lord Peter Wimsey novel Have His Carcase ends with Peter and Harriet knowing who committed the murder, how it was done, and that it would be stunningly difficult to prove it. Harriet, however, points out that the reason for the murder was about to arise again, so they do decide to go to court over it..
- In Harry Potter and the Goblet of Fire, it was revealed that, when Voldemort killed his muggle relatives, the residents of the village where they lived were sure the victims' gardener, Frank Bryce, was the murderer, despite the muggle authorities having to release Bryce for being unable to prove the victims were murdered in the first place. He lived under suspicion for the rest of his life.
- CSI: Crime Scene Investigation quite a bit.
- An episode of CSI: Miami rests on avoiding this. The CSI have evidence linking a person to a drive-by, but the key evidence is a testimony from the victim's son, who is a child and whom no one wants to put in front of a jury. The CSI race to find more evidence to make up for the kid. They fail and he walks free from killing the kid's mom... Though he is immediately arrested him for the murder of his accomplice, and this time it's an airtight case.
- Law & Order: Special Victims Unit does this a bit too, although usually the perp gets off from something the main characters think should be illegal, but actually isn't (see There Should Be a Law for examples).
- In the Law & Order: UK episode "Samaritan" (based on the Law & Order episode "Manhood"), the team discover a homophobic policeman waited for four minutes to assist his gay partner who was caught in a crossfire and died- the gunman was also killed). The CPS decide that they're never going to make manslaughter by gross negligence stick and instead go for misconduct in a public office. Unfortunately, the CCTV footage of him hanging around is too grainy to identify him and is thrown out by the judge for being prejudicial because of it, the medical experts can't say whether arriving four minutes earlier would have saved him and the officer who knew he did it refuses to testify. The copper is acquitted.
- NCIS had one case where the perp gave instructions to the gang from their absent leader. The team knew he had killed a sailor and the supposedly absent leader, but couldn't prove it. So they showed the other gang members their evidence, mentioned that they would never get a conviction, and the perp shows up the next morning dead in a dumpster.
- Cold Case had one episode end with this, in which a prominent politician admits to Valens, off the record, that he committed the murder years ago. Unfortunately, his sister, in a misguided show of loyalty ( and possibly one-sided love), has already confessed to everything, and there's no evidence to contradict her claims.
- Justified plays this straight and subverts it when the kidnapping and attempted murder charges against Boyd Crowder are dropped. The testimony of the only witnesses, Ava Crowder and Raylan Givens, is deemed tainted because they started sleeping together and can be used to easily create reasonable doubt in a jury. Boyd did intimidate Ava into staying in the house till Raylan arrived so the kidnapping charge is valid (though difficult to prove), however, Boyd drew his gun in response to Ava pointing a shotgun at him so the attempted murder is primarily (it is implied that he was still deciding whether to try and kill them) a case of self defense.
- The reason the prosecutors rely on the kidnapping and attempted murder charges so much is because they have no evidence to convict Boyd of the charges he is 100% guilty of: bank robbery, blowing up a church and murder.
- Boyd's father Bowden is convicted of the charges he is guilty of but the sheriff who arrested him is found to be working for a Columbian drug cartel so a retrial is ordered. The prosecutor decides not to bother proving the case again since Bowden only has a few months of his sentence left anyway.
- In season two, murder charges against Dicky Bennett are dropped after the only witness recants his testimony. The case would still have been difficult to prove since the witness was an accomplice and the physical evidence is more incriminating toward him than Dicky. Everyone knows what actually happened but an unbiased jury would have probably acquitted barring more incriminating evidence.
- An episode of Criminal Minds has the team arrest a man who fits the profile perfectly, and who has no alibis for any of the murders, but as there isn't any definitive evidence to say he did it, the team aren't sure what to do with him. After he is released, the team enact a plan to get him to confess, but it goes horribly wrong and results in his death and the death of someone else, and they still don't have any proof that he did it.
- Baltar's trial in the rebooted Battlestar Galactica ends with a not-guilty verdict that Adama (who was the swing vote on the judges' panel) explains this way, saying to Roslin that "not guilty is not the same as innocent" and that the verdict is because "the defense made their case; the prosecution didn't". A good decision, considering that Baltar happened to be innocent of the specific charges brought against him
- In the second Laura Bow game, even if the player has figured it out already, the murderer will get off scot-free if you haven't collected enough evidence to prove it. In the first game, the murderer ends up dead regardless of what you do, collect, or figure out.
- Most Ace Attorney cases seem like they'll end like this, until Phoenix/Apollo/Miles puts everything together at the last second. There are a few exceptions:
- The Terry Fawles case from the third game. Rather than testify against Dahlia, the woman who framed him and who he still desperately loves, Fawles committed suicide.
- The final case of Apollo Justice: Ace Attorney revolves around this: the murderer has covered his tracks well enough to leave no direct evidence linking himself to the crime, but all the other facts at hand point quite definitively at him. The problem is, the existing court system in place in the series' universe requires either evidence, a confession, or incredibly strong testimony...which is why Phoenix has spent the past seven years working towards the re-establishment of a jury system.
- The third case of Apollo Justice also ventures over here. Apollo knows who to accuse but his case hits a wall when he lacks anything concrete enough to get the guilty party to admit to their guilt. The only way he can slam the book on the actual culprit is by having the defendant admit to his own culpability in a different but related crime. The other crime carries a harsh sentence in his homeland but not in Apollo's country, which makes it advantageous to him to confess now instead of being found guilty at a later time. In doing so, the murderer would be revealed as the two were co-conspirators on the latter crime. After threatening to blow the lid on the whole affair, the real guilty party loses it and breaks down.
- Happened in Ace Attorney Investigations with Manny Coachen. He was never convicted of murdering Cece Yew because The Syndicate that he worked for stole the evidence from the prosecution.
- When Pepper first met Tony in Iron Man: Armored Adventures, she told them that, after the plane crash where Tony's father disappeared, the FBI spent a whole year investigating Obadiah Stane as a suspect and dropped the case since they found no proof of either guilt or innocence. Tony spent the first season believing Stane was guilty until Gene Khan privately admitted to him he was the real culprit.