The Inquisitor Judge's Trilemma

Keisuke Nakao and Tsumagari Masatoshi
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Tsumagari Masatoshi: Keio University

Review of Law & Economics, 2012, vol. 8, issue 1, 137-159

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.

Date: 2012
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DOI: 10.1515/1555-5879.1593

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