Selecting among acquitted defendants: procedural choice vs. selective compensation

In this paper we consider two means for implementing the informational benefits of the Scottish verdict, which we have previously shown provides increased information to society and reduces the misapplication of informal sanctions on defendants and prosecutors. First, we consider a proposal by Leipold to allow defendants to choose whether they will be tried under the standard or the Scottish verdict. Regardless of whether this choice is made prior to plea bargaining or just prior to trial, we find that defendants of both types will choose the Scottish verdict, because the choice of the standard verdict leads to an adverse inference of guilt. Thus, this would require a wholesale shift to the Scottish verdict, something that has been previously resisted when proposed in the U.S. Second, and alternatively, we consider a policy of selective compensation wherein the jury further refines the set of acquitted defendants by designating some, but not all, of them as deserving of compensation. This is accomplished within the standard verdict institution, but replicates the informational advantages of the Scottish verdict, as there are now three outcomes of the trial: conviction; acquittal with no compensation; and acquittal with compensation.