Say that Bob is put on trial for murder in some County. So the trial will be "The People vs Bob", and headed by the local government*. Bob spends weeks held in jail and spends tens of thousands on attorneys.

Ultimately, Bob is found unanimously not guilty (e.g. due to some very strong evidence that obviously shows he's innocent).

Is Bob entitled to any compensation from the government or anyone? A completely innocent man spent weeks in jail and had to spend thousands. Not to mention probably completely trashing his reputation. Can the government just do that to citizens and the citizens just have to live with it?

I'm mainly interested about the answer for the USA, and perhaps California in particular.

*I don't know how law works, so sorry if I'm not exactly write about the naming/jurisdiction conventions. The point is that it's the public government vs Bob.

1 Answer 1


Short Answer

Is Bob entitled to any compensation from the government or anyone?

Generally not, although there are some states where this is possible on a limited basis or in isolated circumstances.

Sometimes Bob can get his non-attorney fee court costs reimbursed or can have his government employer indemnify him for his attorney fee expenses in work related criminal prosecutions resulting in an acquittal. California is among the states that reimburse people acquitted of misdemeanor or infraction cases for court costs incurred (but not attorney fees), but this doesn't extend to felony criminal case acquittals.

A minority of states (including California and federal criminal prosecutions) have exceptions for malicious prosecutions that are groundless and/or frivolous where reimbursement can be sought in a parallel case.

Washington State allows an award of defense attorney fees if there is a self-defense based acquittal.

Most states don't require reimbursement of the attorney fees incurred for a state provided public defender whether or not one is acquitted, but some do, at least in cases of conviction.

Six states require a defendant who is acquitted but found to have had some ability to pay the legal fee of the defense to that extent. Those states are Illinois, Iowa, Kentucky, Nevada, New Hampshire and North Dakota. In addition, Michigan, does not allow for recoupment of appointed counsel defense costs after the fact, but it does require all able defendants to contribute to the costs of their assigned defense.

A completely innocent man spent weeks in jail and had to spend thousands. Not to mention probably completely trashing his reputation. Can the government just do that to citizens and the citizens just have to live with it?

Yes. State law is the main protection and varies widely. The majority rule is to provide no compensation.

Federal Civil Rights Action Remedies

There can also be an award as part of the remedy in a separate parallel lawsuit for an intentional violation of a person's federal constitutional rights by a state or local official acting under color of state or local law, under 42 U.S.C. § 1983, if the qualified immunity defense is overcome.

Even then, there is almost never liability against a judge or prosecutor who intentionally violated the well established constitutional rights of a criminal defendant. Judges and prosecutors have absolute immunity from civil liability for their court related conduct.

But liability can be imposed if a judge's actions are complete ultra vires (i.e. outside the scope of his or her authority), or if a prosecutor participates in the investigative phase of a criminal case in a manner indistinguishable from other law enforcement officers.

The only case I can recall where civil liability was imposed on a judge was a case where he threw a child who was not a party to a custody case (a sibling of a child whose case was before the judge) in jail without any legal proceedings for a few days on grounds that did not constitute contempt of court.

Judges and prosecutors are not immune to criminal charges related to their misconduct or to removal from office or disbarment for their misconduct, however.

Long Answer

There are some U.S. states where almost all acquitted defendant are entitled to some compensation (at least for "court costs"): Florida, Missouri, New Jersey, and North Carolina without limiting reimbursement by type of case or type of defendant. Thus, all defendants acquitted of criminal charges in these four states are potentially eligible to receive compensation for certain defense expenses.

But these usually don't include attorney fees, just out of pocket court process related costs other than attorney fees. Washington State which reimburses attorney fees incurred defendant a self-defense case has arguably the broadest provision of for awarding attorney fees to acquitted defendants who hire their own counsel. Louisiana allows discretionary awards of attorney fees as a general matter, but in practice, it is closer to the states and the federal rule that allows for malicious prosecution actions in exceptional cases.

In the vast majority of U.S. states, an acquitted defendant is not entitled to any compensation.

In some U.S. states, such as North Carolina and Texas, a convicted defendant must often pay the cost of their public defendant as part of their court costs, a debt which is owed to the state which pays for public defenders.

In theory, at least, this reflects the fact that an acquittal is not a finding that the defendant is innocent, only a finding that guilt was not proved beyond a reasonable doubt. Some states allow compensation for a "malicious prosecution" in a collateral lawsuit.

For example, in federal criminal cases, the Hyde Amendment to the Equal Access to Justice Act, permits a criminal defendant to recover reasonable attorney's fees if (1) the defendant are acquitted, and (2) “if the position of the United States was vexatious, frivolous or in bad faith.” 18 U.S.C. § 3006A note. This is parallel to the standard for sanctions for a lawsuit lacking substantial justification in a civil case. A law review article from 2001 reviews how that provision has been applied. (Spoiler: acquitted defendants who are themselves particularly rare in the federal system with only nine successful cases from 1997 to 2001, rarely win Hyde Amendment claims in the entire United States. But it does happen now and then.)

As survey of U.S. practice in these situations is found in a 2015 law review article (with relevant footnotes included below):

This controversy is a national issue, affecting defendants prosecuted at both the federal and state levels.6 While the federal government has adopted a single, limited approach by which acquitted defendants may seek reimbursement,7 state approaches vary widely8 -from providing no reimbursement whatsoever9 to providing full reimbursement for legal expenses and attorney's fees in certain situations.10 For example, some states limit reimbursement to defendants acquitted of certain offenses,11 while other states limit reimbursement to public employees12 or to those who have been prosecuted in bad faith.13 Although there have been occasional scholarly efforts advocating compensation for acquitted criminal defendants,14 none reviews the existing state laws on reimbursement or how these laws are applied.

At least twenty states provide some form of reimbursement to certain defendants.15

  1. Civil-suit reimbursement is a separate but related issue. See, e.g., S.C. CODE ANN. § 15-37-10 (2013) (providing that the attorney of a prevailing party in a civil suit may recover attorney's fees and disbursements from the adverse party); S.D. CODIFED LAWS § 15-17-37 (2013) ("The prevailing party in a civil action or special proceeding may recover expenditures necessarily incurred in gathering and procuring evidence or bringing the matter to trial."). See generally Thomas D. Rowe, Jr., The Legal Theory of Attorney Fee Shifting: A Critical Overview, 1982 DuKE L.J. 651 (discussing several rationales for attorney fee shifting in civil litigation but refraining from expressing a preference for or against fee shifting). This Article focuses only on reimbursement for acquitted criminal defendants.

  2. The Hyde Amendment allows a prevailing party in a criminal case to recover attorney's fees and other expenses when the position of the United States was "vexatious, frivolous, or in bad faith." Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (now codified at 18 U.S.C. § 3006A (2012)).

  3. While states have taken various approaches to reimbursement, they have almost uniformly addressed the issue through legislation. See, e.g., Bd. of Cnty. Comm'rs v. Sawyer, 620 So. 2d 757, 758 (Fla. 1993) ("Cost provisions are a creature of statute and must be carefully construed. This Court has held for over a century that cost provisions against the State must be expressly authorized .... ); People v. Lavan, 218 N.W.2d 797, 798 (Mich. Ct. App. 1974) (stating that the trial court's award to acquitted defendant of his costs and attorney's fees violated the sovereign immunity doctrine because there was no statutory authorization for the award). But see Latimore v. Commonwealth, 633 N.E.2d 396, 398 (Mass. 1994) ("As a general rule, absent a statute or court rule authorizing the award of attorney's fees and costs, parties are responsible for their own costs of litigation." (emphasis added) (citing cases)), superseded by amended rule, MASS. R. CRIM. P. 15, as recognized in Commonwealth v. Gonsalves, 739 N.E.2d 1100, 1103 n.4 (Mass. 2000) (noting that Rule 15 was amended following Latimore in order to provide additional reimbursement). There are a few exceptions, however. For example, North Carolina provides for reimbursement through a constitutional provision, see N.C. CONST. art. I, § 23, and Massachusetts provides for reimbursement through court-made procedural rules, see MASS. R. CRIM. P. 15(d), 25(c)(2), 30(c).

  4. See, e.g., James J. Belanger, Frederick R. Petti & James Berchtold, Seeking Attorney's Fees in Criminal Cases, NEV. LAW., Mar. 2002, at 6, 32 ("Nevada currently has no mechanism for compensating a criminal defendant who has been forced to defend him or herself in a groundless action."). Not only do the remaining states provide no reimbursement to acquitted defendants, but a few of them partially charge acquitted indigent defendants for their legal representation. Six states currently have "recoupment" statutes that require acquitted indigent defendants to reimburse the state for a portion of their appointed defense counsel's fees if they are able. See 725 ILL. COMP. STAT. 5/113-3.1(a)-(b) (West 2014); IOWA CODE § 815.9 (2013); Ky. REV. STAT. ANN. § 31.120(1)(b) (West 2014); NEV. REV. STAT. § 178.3975(1)-(2) (2001); Id. § 178.398 (LexisNexis 2013); N.H. REV. STAT. ANN. § 604-A:9(J) (2014); N.D. CENT. CODE § 29-07-01.1(2) (2013). A seventh state, Michigan, does not allow for recoupment after the fact, but it does require all able defendants to contribute to the costs of their assigned defense. See MICH. CT. R. 6.005(C).

The United States Supreme Court, in Fuller v. Oregon, 417 U.S. 40 (1974), upheld the constitutionality of recoupment statutes, finding that requiring repayment does not interfere with, or have a chilling effect on, the constitutional right to counsel. See id. at 51-53. The Court found significant, however, that the statute at issue in Fuller imposed reimbursement obligations only upon defendants who were actually able to pay. Id.

Other states also have recoupment statutes, but those states recoup only from convicted defendants. See, e.g., OR. REV. STAT. § 161.665 (2011). The American Bar Association recommends that states go even further by recouping from defendants "only in instances where they have made fraudulent representations for purposes of being found eligible for counsel." ABA STANDARDS FOR CRIMINAL JUSTICE: PROVIDING DEFENSE SERVICES § 5-7.2 cmt, at 92-93 (3d ed. 1992).

  1. See, e.g., MD. CODE ANN., CTS. & JUD. PROC. § 12-302(c)(4)(vi) (LexisNexis 2014) ("If the State loses the appeal, the jurisdiction shall pay all the costs related to the appeal, including reasonable attorney's fees incurred by the defendant as a result of the appeal."); WASH. REV. CODE § 9A.16.110(2) (2014) (reimbursing defendants acquitted by reason of self-defense for "all reasonable costs, including loss of time, legal fees incurred, and other expenses involved in[the] defense").

  2. See, e.g., CAL. PENAL CODE § 1447 (West 2011) (misdemeanors or infractions); Ky. REV. STAT. ANN. § 63.070 (West 2006) (impeachment proceedings); Wyo. STAT. ANN. § 7-1-103 (2013) (misdemeanors).

  3. See, e.g., N.J. STAT. ANN. § 18A: 16-6.1 (West 2014) (acts or omissions arising out of one's performance of official duties); N.Y. Pur. OFF. LAW § 19(2)(a) (McKinney 2008) (actions within the scope of one's public employment or duties).

  4. See ARIZ. REV. STAT. ANN. § 22-327(B) (2013); CAL. PENAL CODE § 1447 (West 2011); IDAHO CODE ANN. § 19-3923 (2004); MICH. CoMP. LAWS §

  5. ld (2014).

  6. See, e.g., Fotios (Fred) M. Burtzos, Should I Lose Just Because You Accuse?, COLO. LAW., Nov. 2008, at 101, 102, 104 ("A defendant who prevails, regardless of how that takes place, should not be mined or left significantly worse off for winning .... If the district attorney chooses to pursue someone in court and fails in that pursuit, the office of the district attorney should be required to try to return that person to the same financial position he or she was in before the prosecution began."); Omer Dekel, Should the Acquitted Recover Damages? The Right of an Acquitted Defendant to Receive Compensation for the Injury He Has Suffered, 47 CRIM. L. BULL. 474, 474 (2011) (contending that the "prosecution should bear the various costs of an acquitted defendant's trial process"); Luciana Echazu & Nuno Garoupa, Why Not Adopt a Loser-Pays-All Rule in Criminal Litigation?, 32 INT'L REV. L. & ECON. 233, 234 (2012) (considering an economic model for implementing "a loser-pays-all rule" in criminal cases, with a focus on the rule's effects on deterrence and legal error); Pamela S. Karlan, Fee Shifting in Criminal Cases, 71 CHI.-KENT L. REV. 583, 584, 600 (1995) (suggesting that fee shifting should be applied to certain classes of criminal cases, including cases in which defendants retained private counsel and were acquitted, but only if such defendants can "prove their actual innocence by a preponderance of the evidence"); Russell E. Lovell II, The Case for Reimbursing Court Costs and a Reasonable Attorney Fee to the Non-Indigent Defendant upon Acquittal, 49 NEB. L. REV. 515, 516-18 (1970) (advocating for reimbursement for non-indigent acquitted defendants using a tort-like remedy to make them whole again); Keith S. Rosenn, Compensating the Innocent Accused, 37 OHIO ST. L.J. 705, 706 (1976) (noting the devastatingly high costs of criminal defense work and arguing for the creation of a "a right to compensation for damages resulting from erroneous criminal charges"); cf Johan David Michels, Compensating Acquitted Defendants for Detention Before International Criminal Courts, 8 J. INT'L CRIM. JUST. 407, 408 (2010) (arguing that acquitted defendants "should have a right to compensation for the period spent indetention before an international criminal court"). But see David S. Jones, How Many Shields Are Enough?, COLO. LAW., Nov. 2008, at 101, 103 (responding to Burtzos' article, supra, and stating that "[tlo say we need new legislation allowing [acquitted defendants] recovery of attorney fees, costs, or other damages from the government ignores not only the current safeguards for the accused, but also their existing remedies").

The article continues noting that:

Ten states reimburse at least some acquitted defendants for their attorney's fees. l00 While no state provides attorney's fees reimbursement to all acquitted defendants, every state allowing for reimbursement of public employees includes such fees in their reimbursement laws.

  1. The ten states are: Louisiana, Maryland, Massachusetts, Mississippi, New Jersey, New York, Pennsylvania, Utah, Virginia, and Washington. See LA. REV. STAT. ANN. § 13:5108.3(B)(1) (2014) (permitting "payment of legal fees and expenses for defense"); MD. CODE ANN., CTS. & JuD. PROC. § 12-302(c)(4)(vi) (LexisNexis 2014) (stating that for certain unsuccessful appeals by the State, "the jurisdiction shall pay all the costs related to the appeal, including reasonable attorney's fees incurred by the defendant as a result of the appeal"); MIss. CODE ANN. § 25-1-47(1) (2010) (authorizing municipalities "to investigate and provide legal counsel" to public employee defendants); N.J. STAT. ANN. § 18A: 12-20 (West 2014) (stating that, for boards of education members, "the board of education shall defray all costs of defending such action, including reasonable counsel fees and expenses"); id. § 18A:16-6.1 (stating that, for officers and employees of boards of education, "the board of education shall reimburse [them] for the cost of defending such proceeding, including reasonable counsel fees"); id. § 40A: 14-155 (West 2014) (providing that, for members of municipal police departments, "the municipality shall provide said member or officer with necessary means for the defense"); N.Y. PUB. OFF. LAW § 19(2)(a) (McKinney 2008) (I]t shall be the duty of the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an employee in his or her defense of a criminal proceeding .... ); UTAH CODE ANN. § 52-6-201(1) (LexisNexis 2013) ("[Public] employee[s] shall be entitled to recover reasonable attorney fees and court costs necessarily incurred in the defense .... "); id. § 53A-6-503(2) ("[A]n educator is entitled to recover reasonable attorneys' fees and costs incurred in the educator's defense .... "); VA. CODE ANN. § 51.1-124.28 (2013) (stating that, for acquitted members of the Virginia Retirement System, "the Board may reimburse all or part of the cost of employing legal counsel"); WASH. REV. CODE ANN. § 9A.16.110(2) (West 2014) (providing that, for a defendant acquitted by reason of self-defense, "the state of Washington shall reimburse the defendant for all reasonable costs, including ... legal fees incurred ... in his or her defense"); PA. R.J.A. No. 1922(A) (A judge may be reimbursed for legal fees paid in the defense of a criminal action .... "); supra notes 84, 88-90 (quoting Massachusetts' four relevant court rules permitting reimbursement of a defendant's "reasonable attorney's fees" for certain unsuccessful appeals by the Commonwealth).

Footnote On Compensation For Wrongful Convictions

There is also no general right to reimbursement or compensation after a wrongful conviction which is set aside, apart from a § 1983 lawsuit against a law enforcement official who intentionally violated the well established constitutional rights of the wrongfully convicted person.

Some states provide by statute or court rule for compensation of wrongfully convicted defendants whose convictions are set aside, but state law varies greatly on the standard for determining a right to compensation and on the amount of compensation that must be awarded.

Often there is no right to compensation absent proof of actual factual innocence rather than a merely vacated conviction, and/or wrongdoing by a state actor. Many states provide no relief or compensation to a wrongfully convicted defendant who is later released other than the federal § 1983 action if it is available.

  • My understanding is that typically bail is reimbursed to the defendant regardless of the outcome of the trial, since it's merely guarantee that someone will show up to trial. Additionally if acquitted and held without bail it could be grounds for wrongful imprisonment suits.
    – hszmv
    Commented Jan 3, 2023 at 22:39
  • @hszmv Sort of. If you post your own bail you get it back. It you had to pay a bail bond agent to post bond because you don't have the liquid funds to do so, there is typically a 10% nonrefundable fee that you don't get back. If acquitted and held without bail, or if simply arrested an held without a bail hearing, one can take legal action to be released (historically a habeas corpus action but codified by statute or court rule in many jurisdictions), but that would rarely give right to a claim for money damages. Return of seized property is also a related complicated issue.
    – ohwilleke
    Commented Jan 3, 2023 at 23:06

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