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

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.