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

Author

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  • Nakao Keisuke

    (University of Hawaii at Hilo)

  • Tsumagari Masatoshi

    (Keio University)

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.

Suggested Citation

  • Nakao Keisuke & Tsumagari Masatoshi, 2012. "Discretionary vs. Mandatory Prosecution: A Game-Theoretic Approach to Comparative Criminal Procedure," Asian Journal of Law and Economics, De Gruyter, vol. 3(1), pages 1-14, October.
  • Handle: RePEc:bpj:ajlecn:v:3:y:2012:i:1:n:6
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    References listed on IDEAS

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    1. William M. Landes, 1974. "An Economic Analysis of the Courts," NBER Chapters,in: Essays in the Economics of Crime and Punishment, pages 164-214 National Bureau of Economic Research, Inc.
    2. Ramseyer, J Mark & Rasmusen, Eric B, 2001. "Why Is the Japanese Conviction Rate So High?," The Journal of Legal Studies, University of Chicago Press, vol. 30(1), pages 53-88, January.
    3. Nakao Keisuke & Tsumagari Masatoshi, 2012. "The Inquisitor Judge's Trilemma," Review of Law & Economics, De Gruyter, vol. 8(1), pages 137-159, May.
    4. repec:cup:apsrev:v:92:y:1998:i:01:p:23-35_20 is not listed on IDEAS
    5. Miceli, Thomas J, 1990. "Optimal Prosecution of Defendants Whose Guilt Is Uncertain," Journal of Law, Economics, and Organization, Oxford University Press, vol. 6(1), pages 189-201, Spring.
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