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

Asian Journal of Law & Economics, Vol. 3, Iss. 1, Article 6, 2012

10 Pages Posted: 4 Mar 2012 Last revised: 2 Dec 2013

Keisuke Nakao

University of Hawaii at Hilo

Masatoshi Tsumagari

Keio University - Faculty of Economics

Date Written: March 4, 2012

Abstract

Using a game-theoretic model of criminal procedure, we investigate relative merits and demerits between 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 it 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.

Keywords: discretionary prosecution, mandatory prosecution, case screening, evidence production

JEL Classification: D02, D73, K41

Suggested Citation

Nakao, Keisuke and Tsumagari, Masatoshi, Discretionary vs. Mandatory Prosecution: A Game-Theoretic Approach to Comparative Criminal Procedure (March 4, 2012). Asian Journal of Law & Economics, Vol. 3, Iss. 1, Article 6, 2012. Available at SSRN: https://ssrn.com/abstract=2015779 or http://dx.doi.org/10.2139/ssrn.2015779

Keisuke Nakao (Contact Author)

University of Hawaii at Hilo ( email )

Hilo, HI 96720
United States

Masatoshi Tsumagari

Keio University - Faculty of Economics ( email )

2-15-45 Mita, Ninato-ku
Tokyo 1088345
Japan

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