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The Inquisitor Judge's Trilemma

Author

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  • Nakao Keisuke

    (University of Hawaii at Hilo)

  • Tsumagari Masatoshi

    (Keio University)

Abstract

We address the long-standing judicial debate over inquisitorial and adversarial procedures in criminal trials, focusing on the incentives to collect evidence of a defendant ’s guilt or innocence. We demonstrate three shortcomings of the former procedure: (i) a judge may suffer a trilemma, or a quandary among three tasks she confronts, i.e., an incentive scheme to improve the performance of one task impairs the performance of one or two of the others; (ii) it underperforms the latter procedure in collecting evidence at cost if private interests in winning a suit are more motivating than the public interests in avoiding erroneous judgments; (iii) incentive arrangements are so constrained that it may be impossible to induce high efforts of investigation. However, shortcoming (ii ) might be negated when private interests lead adversely to obscuring, rather than revealing evidence.

Suggested Citation

  • Nakao Keisuke & Tsumagari Masatoshi, 2012. "The Inquisitor Judge's Trilemma," Review of Law & Economics, De Gruyter, vol. 8(1), pages 137-159, May.
    • Handle: RePEc:bpj:rlecon:v:8:y:2012:i:1:n:6
    DOI: 10.1515/1555-5879.1593
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    References listed on IDEAS

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    1. Nakao Keisuke & Tsumagari Masatoshi, 2012. "Discretionary vs. Mandatory Prosecution: A Game-Theoretic Approach to Comparative Criminal Procedure," Asian Journal of Law and Economics, De Gruyter, vol. 3(1), pages 1-14, October.

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