You go first!: coordination problems and the burden of proof in inquisitorial prosecution

Prosecution of criminals is costly and subject to errors. In contrast to adversarial court procedures, in inquisitorial systems the prosecutor is regarded as an impartial investigator and an aide to the judge. We show in a sequential prosecution game of a Bayesian court that a strategic interaction...

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Bibliographic Details
Published in:European journal of law and economics 2023-10, Vol.56 (2), p.403-422
Main Authors: Christmann, Robin, Kirstein, Roland
Format: Article
Language:English
Subjects:
Acquittals & mistrials
Altruism
Bayesian analysis
Burden of proof
Commercial Law
Convictions
Coordination
Court hearings & proceedings
Courts
Criminal investigations
Criminal law
Criminal procedure
Economics
Economics and Finance
Errors
European Integration
Evidence
Inquisitorial systems
Law and Economics
Offenders
Operating costs
Policy making
Prosecutions
Public Finance
Public prosecutors
Trials
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Summary:Prosecution of criminals is costly and subject to errors. In contrast to adversarial court procedures, in inquisitorial systems the prosecutor is regarded as an impartial investigator and an aide to the judge. We show in a sequential prosecution game of a Bayesian court that a strategic interaction between these two impartial agents exists where each player may hope to free ride on the other one´s investigative effort. This gives rise to inefficient equilibria. The model demonstrates that the effectiveness of some policy measures that intend to curb the free-riding problem critically depends on the assumed benevolence of the prosecutor. We find that, if policy makers are unable to infer the true preferences of the prosecutorial body, the high burden of proof in criminal law may reduce the probability of court errors. Our analysis, therefore, substantiates claims made in the literature that inquisitorial procedures are introduced to avoid wrongful acquittals.
ISSN:0929-1261
1572-9990
1572-9346
DOI:10.1007/s10657-022-09757-2