A aplicabilidade da teoria dos jogos no processo penal brasileiro

Abstract

This scientific article aims to analyze the applicability of game theory to the Brazilian criminal process. It is based on the premise that the contemporary criminal justice system, especially following the expansion of negotiated criminal justice mechanisms promoted by Law 9.099/1995, Law 12.850/2013, and Law 13.964/2019, can be understood, to a large extent, as a space for strategic interaction between the prosecution and the defense, in which the formal models developed by game theory, notably the prisoner’s dilemma, formulated by Merrill Flood, Melvin Dresher, and Albert Tucker, and the Nash equilibrium, formulated by John Forbes Nash Jr., find significant utility. This qualitative, exploratory, and bibliographic study examines plea bargaining, non-prosecution agreements, criminal settlements, conditional suspension of proceedings, jury trials, and pretrial detention from the perspective of game theory, drawing in particular on the works of legal scholar Alexandre Morais da Rosa, a pioneering author in the Brazilian context. Finally, the limits of this application are discussed based on Luigi Ferrajoli’s rights-based critique and the observation of informational and material asymmetries among the parties to the proceedings. It is concluded that game theory constitutes a relevant analytical tool for understanding the contemporary Brazilian criminal justice system, provided that its application is accompanied by critical reflection on the constitutional and rights-based limits of negotiated criminal justice.