“Are you telling me that you can be found not guilty in America, but still have to pay your attorney’s fees?”
That was the question a London barrister, Jerome Lynch, asked me on the first day of my externship with him in 1996. Until then, I hadn’t considered how peculiar this might seem, especially from an outsider’s perspective. In law school, the “American Rule”—the principle that each party pays their own legal fees—was mentioned only briefly. In an educational setting that values debate, this rule seemed to fly under the radar, simply accepted without question.
I had to answer, “Yes.” Yes, you can be found not guilty and still lose—not just valuable time, but also financially. In the U.S., you can face the full power of the government, win your case, and still be left with a life-altering legal bill, or bankrupt. Suddenly, the “American Rule” seemed absurd.
We say that every defendant in America is presumed innocent and that the burden of proof rests entirely with the government. Yet in practice, an acquitted defendant may pay a hidden price for exercising those rights, leaving them destitute and bankrupt for the presumption of innocence. That reality has become harder to ignore as more Americans, across the political spectrum, worry about politically charged or high-profile prosecutions. Whether you think those concerns are overstated or not, the basic question is the same: should any administration be able to impose crushing financial consequences on people it cannot convict?
Consider what “the full power of the government” truly entails. Agents knocking on your door, invading your home. Subpoenas to your bank, employer, and phone company. Forensic experts and endless motions—all funded by tax dollars.
On the other side is the accused—a single person in need of legal assistance. The defendant could be from any demographic—any and all income levels, races, genders, neighborhoods, and professions. The accused often faces a significant drop in income due to business losses or being fired, making it difficult to find replacement income. Bills pile up. The defendant must either qualify as indigent to get appointed counsel or find a way to pay a private lawyer to fight back—usually paying up front, which is often an attorney’s only real protection against bankruptcy. Then, even if the jury ultimately says, “not guilty,” that defendant pays every penny of the defense costs.
The Hyde Amendment is a narrow federal statute that allows wrongfully prosecuted defendants to recover fees, but only if the prosecution was “vexatious, frivolous, or in bad faith.” This sets an intentionally high bar. It offers no relief for those who were overcharged, acquitted in a close case, or had their case dismissed—sometimes just before trial after incurring substantial fees. It also fails those whose files should never have left a prosecutor’s desk. For most acquitted defendants, the process itself becomes the punishment.
Many of our peers in the Western world handle this differently. Countries like the United Kingdom, Germany, France, the Netherlands, Denmark, Sweden, New Zealand, and Australia generally provide some mechanism for covering defense costs or reimbursing them after an acquittal, often at capped or court-approved rates. The details vary, but the underlying idea is simple: if the state accuses you of a crime and fails to prove it, you should not be financially ruined for having defended yourself.
There are two straightforward reforms worth considering. First, guarantee competent defense counsel in every criminal case, regardless of income, by having courts appoint and supervise qualified lawyers for all defendants. Second, shift the financial risk to where the moral risk lies: if the government fails to secure a conviction or the case is dismissed, the state should reimburse reasonable defense fees at approved, capped rates, under court oversight. Neither approach is a blank check. Both align our practices with our principles.
Returning to London, I spent nearly five months in 1996 working with barrister Lynch—now King’s Counsel—on England’s largest tax evasion trial. Two defendants were convicted, while two others, including our client, were acquitted. I vividly recall the day the verdicts were read and the relief on our client’s face when she realized she could leave the courtroom not only innocent but with a real chance to start over. The experience was grueling, but it didn’t doom her to financial ruin.
In a justice system that truly values the presumption of innocence, “not guilty” should mean exactly that, without a bankruptcy surcharge.
