Selecting among Acquitted Defendants: Procedural Choice versus Selective Compensation

We consider two means for implementing the informational benefits of the Scottish verdict (a three-outcome verdict) in a two-outcome legal system. Leipold proposed allowing defendants to choose to be tried under the two-outcome or the three-outcome verdict. In equilibrium, all defendants choose the three-outcome verdict, which requires a wholesale shift of the legal system (something unlikely to occur in, for example, the U.S.). Alternatively, we consider selective compensation of acquitted defendants by the jury for those believed to deserve compensation. This results in reduced informal sanctions for those selected defendants and may also lead to enhanced accountability of prosecutors.