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The Inquisitor Judge's Trilemma

Review of Law & Economics, Vol. 8, No. 1, pp. 137-159, 2012

25 Pages Posted: 2 Dec 2013  

Keisuke Nakao

University of Hawaii at Hilo

Masatoshi Tsumagari

Keio University - Faculty of Economics

Date Written: December 2, 2013

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 and 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, the shortcoming (ii) might be negated when the private interests lead adversely to obscuring, rather than revealing, evidence.

Keywords: criminal trial; inquisitorial vs. adversarial procedures; judge's trilemma

JEL Classification: D86, K41

Suggested Citation

Nakao, Keisuke and Tsumagari, Masatoshi, The Inquisitor Judge's Trilemma (December 2, 2013). Review of Law & Economics, Vol. 8, No. 1, pp. 137-159, 2012. Available at SSRN: https://ssrn.com/abstract=2362130

Keisuke Nakao (Contact Author)

University of Hawaii at Hilo ( email )

Hilo, HI 96720
United States

Masatoshi Tsumagari

Keio University - Faculty of Economics ( email )

2-15-45 Mita, Ninato-ku
Tokyo 1088345
Japan

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