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

Author

Listed:
  • Robin Christmann

    (Leibniz School of Business Hanover)

  • Roland Kirstein

    (Otto-von-Guericke-University Magdeburg)

Abstract

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.

Suggested Citation

  • Robin Christmann & Roland Kirstein, 2023. "You go first!: coordination problems and the burden of proof in inquisitorial prosecution," European Journal of Law and Economics, Springer, vol. 56(2), pages 403-422, October.
    • Handle: RePEc:kap:ejlwec:v:56:y:2023:i:2:d:10.1007_s10657-022-09757-2
    DOI: 10.1007/s10657-022-09757-2
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    References listed on IDEAS

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    More about this item

    Keywords

    Criminal justice; Reasonable doubt; Benevolent prosecutor; Court errors;
    All these keywords.

    JEL classification:

    • K14 - Law and Economics - - Basic Areas of Law - - - Criminal Law
    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process

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