Pseudo-Adversarialism: A Theoretical Comparison Between the U.S. and Japanese Criminal Procedures

Abstract This article offers a unified theoretical framework to address two distinctive forms of adversarial procedure: the bona fide adversarial system and the pseudo-adversarial system. In the former, a harsh contest between the prosecution and the defense is promoted, and an acquittal is rendered with substantial likelihood. In the latter, the prosecution overpowers the defense so that defendants are almost always convicted. We explain this procedural dichotomy as a result of optimal incentive designs institutionalized through controlling a judge's standard of proof beyond a reasonable doubt, a prosecutor's discretionary rule for indictment, and a defendant's right to counsel. Our theory suggests that the bona fide adversarial system performs suitably with jury trials, publicly-elected prosecutors, and government-based defense systems, while the pseudo-adversarial system is shaped by bench trials, career prosecutors, and court-appointed defense counsels. The Japanese pseudo-adversarial system might still be influenced by the defunct inquisitorial system initiated during the Meiji Restoration.