Discretionary vs. Mandatory Prosecution: A Game-Theoretic Approach to Comparative Criminal Procedure

Keisuke Nakao, Masatoshi Tsumagari

Research output: Contribution to journalArticlepeer-review

Abstract

Using a game-theoretic model of criminal procedure, we investigate relative merits and demerits of discretionary and mandatory prosecution. The game illustrates a prosecutor's dilemma associated with his two tasks: evidence production and case screening. Discretionary prosecution makes use of incriminating evidence to dispose of weak cases, but discretionary prosecution may suffer the moral-hazard problem in evidence production more seriously than mandatory prosecution. Our welfare analyses suggest that mandatory prosecution outperforms discretionary prosecution when evidence transmission from the prosecutor to the judge is accurate and/or when the cost of litigation incurred by the prosecutor is large.

Original languageEnglish
Article number6
JournalAsian Journal of Law and Economics
Volume3
Issue number1
DOIs
Publication statusPublished - 2012

Keywords

  • case screening
  • discretionary prosecution
  • evidence production
  • mandatory prosecution

ASJC Scopus subject areas

  • Law
  • Economics, Econometrics and Finance (miscellaneous)

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