Selecting Among Acquitted Defendants :

In a previous paper we show how social pressure, in the form of informal sanctions by outside observers, affects choices made by defendants and prosecutors, both with respect to plea offers and to decisions to proceed to trial. In that paper, we assume that the defendant's guilt or innocence is his private information, and that evidence at trial is imperfect and may result in errors in conviction or acquittal. We consider two types of trial verdict: the standard, two-outcome (acquit/convict) verdict and a three-outcome verdict (usually referred to as the Scottish verdict, wherein acquittal is subdivided into not guilty and not proven). We show that the Scottish verdict raises the expected cost to truly guilty defendants and lowers it for truly innocent defendants. This, in turn, means that (relative to the standard verdict) the equilibrium plea offer is higher without lowering the likelihood of plea acceptance. Significantly, the Scottish verdict generates more information for outside observers than occurs under the standard verdict, thereby leading to reduced misapplication of informal sanctions; overall justice is improved. In this paper we consider two means for implementing the informational benefits of the Scottish verdict. 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.