Economic Analysis of the Rationality of the Collaboration Agreement

• Autor(a) principal: Kalkmann, Tiago
• Data de Publicação: 2019
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Brasileira de Direito Processual Penal (Online)
• Texto Completo: https://revista.ibraspp.com.br/RBDPP/article/view/195
• topic: Plea agreement; Rationality; Cognitive bias; Heuristic; Informational asymmetry.; Colaboração Premiada; Racionalidade; Viés Cognitivo; Heurística; Assimetria de Informações.

This article questions whether the criminal collaboration, as on the article 4 from Law nº 12.850/2013, is an economically rational decision to the defendant. In order to that, firstly, will be discussed the essential elements of the collaboration plea agreement, proving that its implantation in Brazilian’s criminal justice system took place in the center of demands for punishment and inefficiency of the traditional investigation methods. Using the methodology of law and economics, this research quarrels the rationality of the decision to collaborate with the investigations. The work recognizes that this decision is not rational under the premises of the neoclassical economy. Thus, by the outlines provided by the behavioural economy, it’s verifiable that this choice is influenced by cognitive biases, branched mostly from the informational asymmetry and the exceeding application of pre-trial detention to distort defendant’s trial projection. In conclusion, the system leads to an irrational use of collaboration plea, that needs to be offset by other legal tools as a mean to induct behaviours.