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No, you aren’t going to get the alleged victim to pay your attorney's fees after an acquittal

Updated: Nov 10, 2022

I had a client ask me if he would be able to force the alleged victim to pay his attorney's fees after he got acquitted at trial. The short answer was no, but his probing questions were interesting and led to a productive discussion that is worthwhile recreating here.

It is important to remember that the criminal system is part of a broader legal system that is meant to help civilized society remain "civilized." Whatever your thoughts on government might be, you cannot deny that the task of a government is hard. A government has to distribute limited resources among a population that consists of a wide variety of people and groups of people. A government is supposed to take a community's pool of resources and use it to maximize the benefit to the community. Political disagreements in their essence are about how the government should/does go about doing this. Inevitably, when the government takes an action in furtherance of its understood goals, there will be people who are not happy with what the government has done. Put plainly, there are winners and there are losers.

Looking specifically at the criminal legal system, the government is tasked with balancing the community's safety, the protection of community members' rights, the promotion of the community's ability to thrive (read: attract and retain business), and many other considerations. To really understand this, it is helpful to look at two extreme scenarios. In one scenario, the government could practically eradicate violent crime by forcing every person to remain in solitary confinement. This would surely accomplish the government's objective of promoting safety. However, in doing so, the government would be trampling on the rights of its citizens, thereby failing at its purpose of protecting its citizens' rights.

In a second and almost opposite scenario, the government could choose to eliminate all of its mechanisms for law enforcement and prosecution, thereby greatly reducing how much of the government's budget is spent on those tasks. People would be "free" to do as they please. Some might view this as a paradise for freedoms. However, the reality that some people will harm others if given the opportunity will became painfully apparent. Freedom might be improved, but the community's safety and ability to thrive will be severely compromised.

This balancing act is always present. So, what does this have to do with recovering attorney's fees following an acquittal? Criminal charges begin with an accusation. Someone, often a person claiming to be the victim, accuses someone else of breaking the law. That is only the beginning of the process. Unless the accuser is the government itself, the accuser then has to turn to a representative of the government, usually a police officer or prosecutor, and convince that representative to pursue criminal charges against the accused. The representative then has to decide how much of the government's limited resources it wants to dedicate to this pursuit based on the chances of success, the harm caused, what the outcome of the successful prosecution is likely to be, etc. In other words, whether a case moves forward is dependent on the decision-making process of people who are not the victim.

When there is an acquittal, by definition, the accused has been found not guilty. In the United States that means that the prosecution failed to prove the accused's guilt beyond a reasonable doubt. That phrasing is very important. Note that the acquittal does not mean the accused is innocent of engaging in the criminal behavior. That can be true, but is not necessarily so. The prosecution can fail to prove something happened even if it happened. A person can be acquitted for many reasons: the crime never happened, the crime happened but someone else committed it, a crime other than the one the prosecution charged happened, the crime happened but the accused had a sufficiently compelling reason for having committed the crime, etc. Since an acquittal can happen even when the alleged victim was actually harmed by the accused, we can easily think of situations where forcing the victim to pay for the accused's legal expenses shocks the conscience. A stark example would be forcing a rape victim to pay her rapist's legal bills, which the rapist incurred in hiring a defense team that was able to secure the acquittal in the first place.

Besides the fact that it would shock the conscience in many instances to force an alleged victim to pay the accused's legal bills, doing so also would greatly distort incentives. Defendants would take on legal bills that are significantly greater since they have a hope of forcing the victim to pay them, attorneys would manage cases very differently knowing the person to whom they owe their fiduciary duty to is not the one who is going to have to pay for their services, the prosecution will be more reluctant to pursue charges out of fear that doing so might only re-victimize the victim, this time financially, juries might be less inclined to acquit knowing the alleged victim will be on the hook for the legal bills, etc.

The victim's incentives would be distorted as well. If a person knows that they will have to pay the attorneys fees for the person they are accusing of a crime in the event that the prosecution is unable to secure a conviction, that person is going to think at least twice before making the accusation. You might be thinking along the lines of "good! they should think twice before accusing someone of a crime." That may be, but if we consider that it is already very hard for victims to come forward, to make it even harder will likely cause harm to the community. Let's go back to that hypothetical rapist who is now able to force their victim to pay the legal bills. When word gets out that the last person to accuse them of rape was saddled with thousands of dollars in legal bills because the conviction did not "stick," anyone else the rapist victimizes will be discouraged from coming forward to report the crime. The rapist remains at large and able to keep harming others.

The government picks winners and losers. When it comes down to the criminally accused and alleged victims of crimes, in some respects the government sides with the accused (e.g. constitutional rights), and in others the government sides with the alleged victim (e.g. not forcing the victim to pay the legal fees of the accused).

So no, you are not going to get the alleged victim to pay your attorney's fees after an acquittal. Does that suck? Sure does. But if would be a lot worse if that were not the case.

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