5 ms·

It is kind of shocking to me that the state isn't liable for defendants' legal fees in the face of an acquittal. If I sue someone in civil court on frivolous g

by maxcan 13y ago

It is kind of shocking to me that the state isn't liable for defendants' legal fees in the face of an acquittal. If I sue someone in civil court on frivolous grounds, they can countersue me yet no parallel exists in the criminal realm. Perhaps more than just an acquittal is necessary and you'd have to show some sort of prosecutorial overreach to collect. But, in that case, the damages should include compensatory and punitive damages.

hyperion2010 13y ago
The incentives don't line up properly if the state pays because the lawyer is the decision maker in these cases. Unfortunately DAs are rather underpaid and so it would probably be a nonstarter to to make them pay the defendant's legal fees.
- DerpDerpDerp 13y ago
  Why not make the jurisdiction that the prosecutor works for responsible for paying attorney fees if the person is acquitted? They were sure enough to seriously upset and damage a person's life when they pressed charges, and they better be willing to at least cover the cost of a defense when they're wrong.
  - kiallmacinnes 13y ago
    I totally agree - but this does have downsides too, prosecutors will be fired if their loose rate (i.e. cost) is too high, which will lead to only prosecuting guaranteed wins. I still think that's a better system though...
    - DrewRWx 13y ago
      It would also ramp up the already absurd focus on quick, cheap plea bargains.
      - DerpDerpDerp 13y ago
        One thing to think about is that it lowers the cost of a defense if you're relatively sure you'll win. Under the current system, a plea bargain is something like "Take 2 years in jail and pay $50-100k less or face 10 years in jail at trial, where you probably can't even afford a real defense." Under the new system, a plea bargain would have to offer considerably more to the point it's obviously problematic, because acquitted defendants wouldn't still be out the money required to beat the system. Further, it's likely poor people will have better access to top notch lawyers if the lawyer can expect to recoup their cost from the state (rather than just not being paid by the poor person).
        mjmahone17 13y ago
        The other nice thing: you could actually get lawyers to work on the grounds of "you only pay if we win" for criminal cases. This would, presumably, mean "state-provided" defense lawyers would be the best available, as opposed to whoever they can scrounge up as a public defender. Also, presumably, the cost of good legal defense should be less than the $20,000 cost/year for incarceration.
      - bsder 13y ago
        Why? Defense attorneys would have no incentive to settle when they would get paid far more for winning the case.
    - DerpDerpDerp 13y ago
      I mean, it creates some perverse incentives, such as giving a financial reason to withhold evidence from the defense. Of course, you could require that a) there's a fine for being caught at that and b) the department also has to pay for the appeal and initial case and prepay for any retrials. Overall, I think it would be a large improvement, though.
    - bsder 13y ago
      > which will lead to only prosecuting guaranteed wins. Um, good? Marginal cases probably shouldn't be prosecuted unless there is a non-trivial public value to doing so. I'm also a big fan of the fact that prosecutors should have no discretion in terms of jury makeup. If you can't make your case without stacking the deck, you should lose.
  - kiallmacinnes 13y ago
    I totally agree - but this does have downsides too, prosecutors will be fired if their loose rate (i.e. cost) is too high, which will lead to only prosecuting guaranteed wins. I still think that's a better system though...
  - gamblor956 13y ago
    Because an acquittal is not a finding of innocence. It is merely a finding that a person was not determined guilty to the level required by law, i.e., beyond a reasonable doubt. It is entirely possible for everyone to be "pretty sure" that a defendant is guilty but for the defendant to walk simply because they couldn't cross the evidentiary threshold. In those rare instances where actual innocence are found, the jurisdiction does end up paying for the defendant's attorneys fees, and more, as a result of the civil lawsuit the defendant inevitably files.
    - kevincrane 13y ago
      > Because an acquittal is not a finding of innocence. It is merely a finding that a person was not determined guilty to the level required by law If you're innocent until proven guilty, and they never prove you guilty....I'd call you innocent.
      - gamblor956 13y ago
        "Innocent until proven guilty" is simply an admonishment given to juries because many law-and-order types assume that defendants are guilty simply because they are being tried. Legally, a person is simply "not guilty" unless and until they are proven guilty. "Innocence" is a specific legal term which means that person is not only "not guilty" but further that there is sufficient proof that they did not commit the crime alleged.
        kevincrane 13y ago
        Fair enough, that actually all sounds right to me. Like when defendants receive a verdict of "guilty" or "not guilty."
- Brian-Puccio 13y ago
  > Unfortunately DAs are rather underpaid ... What's worse, that DAss offices are lacking in resources or that public defenders' offices are lacking in resources? http://www.nytimes.com/2013/08/24/us/public-defenders-are-tightening-belts-because-of-steep-federal-budget-cuts.html?pagewanted=all&_r=0 http://www.nytimes.com/2013/08/24/us/public-defenders-are-ti... http://www.americanbar.org/news/abanews/aba-news-archives/2013/08/aba_president_rails.html http://www.americanbar.org/news/abanews/aba-news-archives/20... Then there's all the underfunded PDs' offices for states/counties/cities that just don't have the resources to defend their clients. Maybe a better system would involve both the prosecuting and defending attorneys be both paid for by the state from a pool of volunteers and both given the same compensation for their time?
  - gamblor956 13y ago
    They actually do that in smaller counties (in CA, this is very popular in the Far North counties). It's a crapshoot; you frequently end up with people volunteering to be DAs for the political advantages, which makes prosecutorial grandstanding and abuses even worse.
    - judk 13y ago
      When DAs cause trouble, the judges need to step in. There is no system of rules that can succeed where all of the power players are corrupt.
Brian-Puccio 13y ago
> It is kind of shocking to me that the state isn't liable for defendants' legal fees in the face of an acquittal. The state is, even if you're found guilty. You just need to be in a position where you couldn't afford an attorney yourself.
- the_watcher 13y ago
  That's different than what the parent comment is talking about though. The parent is pointing out the absurdity of the state not having to pay the fees of someone acquitted. I'm assuming they even believe that if Bill Gates was wrongfully prosecuted and acquitted, the state should be liable for those costs. I agree, as it would act as a deterrent prosecution (which, given that the entire settlement system of civil procedure is based in the assumption that reducing the burden on the courts of a full docket - deterring riskier less certain prosecutions works toward the same goal).
dragonwriter 13y ago
> It is kind of shocking to me that the state isn't liable for defendants' legal fees in the face of an acquittal. If I sue someone in civil court on frivolous grounds, they can countersue me yet no parallel exists in the criminal realm. That's...not really true. First, plaintiffs aren't generally liable for respondents costs in a civil suit if the plaintiff loses, so the idea that the fact that prosecuting authorities aren't responsible for defendants costs whenever the defendant is acquitted in a criminal case is unexpected given the civil parallel is bizarre. Second, while it is possible to sue someone for abusing the system in a civil case (but just because they lost alone) and be awarded legal costs, the prevention of such abuse in the criminal system is generally provided by the early parts of the criminal process (indictment or preliminary hearing) where the the prosecution is required to demonstrate probable cause before being allowed to even proceed to trial at all. I suppose you could make a case that a prosecution that fails to pass a preliminary hearing out to bear responsibility for the defendant's reasonable legal costs incurred to that point, and that that would be parallel to the kind of protections that exist in the civil system. You might even go farther and extend this by requiring a "preliminary hearing" reviewing the indictment even in cases where an indictment is required (where the defense would have assistance of counsel at the preliminary hearing), since in practice indictment has generally become a weaker protection than a preliminary hearing, even though its intended as a stronger protection against abuse (hence, why it is required for federal felonies.)

by maxcan 13y ago

hyperion2010 13y ago

The incentives don't line up properly if the state pays because the lawyer is the decision maker in these cases. Unfortunately DAs are rather underpaid and so it would probably be a nonstarter to to make them pay the defendant's legal fees.

DerpDerpDerp 13y ago
Why not make the jurisdiction that the prosecutor works for responsible for paying attorney fees if the person is acquitted? They were sure enough to seriously upset and damage a person's life when they pressed charges, and they better be willing to at least cover the cost of a defense when they're wrong.
- kiallmacinnes 13y ago
  I totally agree - but this does have downsides too, prosecutors will be fired if their loose rate (i.e. cost) is too high, which will lead to only prosecuting guaranteed wins. I still think that's a better system though...
  - DrewRWx 13y ago
    It would also ramp up the already absurd focus on quick, cheap plea bargains.
    - DerpDerpDerp 13y ago
      One thing to think about is that it lowers the cost of a defense if you're relatively sure you'll win. Under the current system, a plea bargain is something like "Take 2 years in jail and pay $50-100k less or face 10 years in jail at trial, where you probably can't even afford a real defense." Under the new system, a plea bargain would have to offer considerably more to the point it's obviously problematic, because acquitted defendants wouldn't still be out the money required to beat the system. Further, it's likely poor people will have better access to top notch lawyers if the lawyer can expect to recoup their cost from the state (rather than just not being paid by the poor person).
      - mjmahone17 13y ago
        The other nice thing: you could actually get lawyers to work on the grounds of "you only pay if we win" for criminal cases. This would, presumably, mean "state-provided" defense lawyers would be the best available, as opposed to whoever they can scrounge up as a public defender. Also, presumably, the cost of good legal defense should be less than the $20,000 cost/year for incarceration.
    - bsder 13y ago
      Why? Defense attorneys would have no incentive to settle when they would get paid far more for winning the case.
  - DerpDerpDerp 13y ago
    I mean, it creates some perverse incentives, such as giving a financial reason to withhold evidence from the defense. Of course, you could require that a) there's a fine for being caught at that and b) the department also has to pay for the appeal and initial case and prepay for any retrials. Overall, I think it would be a large improvement, though.
  - bsder 13y ago
    > which will lead to only prosecuting guaranteed wins. Um, good? Marginal cases probably shouldn't be prosecuted unless there is a non-trivial public value to doing so. I'm also a big fan of the fact that prosecutors should have no discretion in terms of jury makeup. If you can't make your case without stacking the deck, you should lose.
- kiallmacinnes 13y ago
  I totally agree - but this does have downsides too, prosecutors will be fired if their loose rate (i.e. cost) is too high, which will lead to only prosecuting guaranteed wins. I still think that's a better system though...
- gamblor956 13y ago
  Because an acquittal is not a finding of innocence. It is merely a finding that a person was not determined guilty to the level required by law, i.e., beyond a reasonable doubt. It is entirely possible for everyone to be "pretty sure" that a defendant is guilty but for the defendant to walk simply because they couldn't cross the evidentiary threshold. In those rare instances where actual innocence are found, the jurisdiction does end up paying for the defendant's attorneys fees, and more, as a result of the civil lawsuit the defendant inevitably files.
  - kevincrane 13y ago
    > Because an acquittal is not a finding of innocence. It is merely a finding that a person was not determined guilty to the level required by law If you're innocent until proven guilty, and they never prove you guilty....I'd call you innocent.
    - gamblor956 13y ago
      "Innocent until proven guilty" is simply an admonishment given to juries because many law-and-order types assume that defendants are guilty simply because they are being tried. Legally, a person is simply "not guilty" unless and until they are proven guilty. "Innocence" is a specific legal term which means that person is not only "not guilty" but further that there is sufficient proof that they did not commit the crime alleged.
      - kevincrane 13y ago
        Fair enough, that actually all sounds right to me. Like when defendants receive a verdict of "guilty" or "not guilty."
Brian-Puccio 13y ago
> Unfortunately DAs are rather underpaid ... What's worse, that DAss offices are lacking in resources or that public defenders' offices are lacking in resources? http://www.nytimes.com/2013/08/24/us/public-defenders-are-tightening-belts-because-of-steep-federal-budget-cuts.html?pagewanted=all&_r=0 http://www.nytimes.com/2013/08/24/us/public-defenders-are-ti... http://www.americanbar.org/news/abanews/aba-news-archives/2013/08/aba_president_rails.html http://www.americanbar.org/news/abanews/aba-news-archives/20... Then there's all the underfunded PDs' offices for states/counties/cities that just don't have the resources to defend their clients. Maybe a better system would involve both the prosecuting and defending attorneys be both paid for by the state from a pool of volunteers and both given the same compensation for their time?
- gamblor956 13y ago
  They actually do that in smaller counties (in CA, this is very popular in the Far North counties). It's a crapshoot; you frequently end up with people volunteering to be DAs for the political advantages, which makes prosecutorial grandstanding and abuses even worse.
  - judk 13y ago
    When DAs cause trouble, the judges need to step in. There is no system of rules that can succeed where all of the power players are corrupt.

Brian-Puccio 13y ago

> It is kind of shocking to me that the state isn't liable for defendants' legal fees in the face of an acquittal. The state is, even if you're found guilty. You just need to be in a position where you couldn't afford an attorney yourself.

the_watcher 13y ago
That's different than what the parent comment is talking about though. The parent is pointing out the absurdity of the state not having to pay the fees of someone acquitted. I'm assuming they even believe that if Bill Gates was wrongfully prosecuted and acquitted, the state should be liable for those costs. I agree, as it would act as a deterrent prosecution (which, given that the entire settlement system of civil procedure is based in the assumption that reducing the burden on the courts of a full docket - deterring riskier less certain prosecutions works toward the same goal).

dragonwriter 13y ago

> It is kind of shocking to me that the state isn't liable for defendants' legal fees in the face of an acquittal. If I sue someone in civil court on frivolous grounds, they can countersue me yet no parallel exists in the criminal realm. That's...not really true. First, plaintiffs aren't generally liable for respondents costs in a civil suit if the plaintiff loses, so the idea that the fact that prosecuting authorities aren't responsible for defendants costs whenever the defendant is acquitted in a criminal case is unexpected given the civil parallel is bizarre. Second, while it is possible to sue someone for abusing the system in a civil case (but just because they lost alone) and be awarded legal costs, the prevention of such abuse in the criminal system is generally provided by the early parts of the criminal process (indictment or preliminary hearing) where the the prosecution is required to demonstrate probable cause before being allowed to even proceed to trial at all. I suppose you could make a case that a prosecution that fails to pass a preliminary hearing out to bear responsibility for the defendant's reasonable legal costs incurred to that point, and that that would be parallel to the kind of protections that exist in the civil system. You might even go farther and extend this by requiring a "preliminary hearing" reviewing the indictment even in cases where an indictment is required (where the defense would have assistance of counsel at the preliminary hearing), since in practice indictment has generally become a weaker protection than a preliminary hearing, even though its intended as a stronger protection against abuse (hence, why it is required for federal felonies.)