LAND WITHOUT PLEA BARGAINING - HOW THE GERMANS DO IT

• NCJ Number: 67145
• Journal: Michigan Law Review Volume: 78 Issue: 2 Dated: (DECEMBER 1979,) Pages: 204-225
• Author(s): J H LANGBEIN
• Date Published: 1979
• Length: 22 pages
• Corporate Author: Michigan Law Review Assoc
• Sale Source: William S Hein and Co, Inc
• Language: English
• Country: United States of America
• Note: PRICE QUOTED IS FOR ENTIRE ISSUE.

Annotation

THIS ARTICLE CITING THE LEGAL SYSTEM OF WEST GERMANY, COUNTERS ARGUMENTS THAT DEFEND PLEA BARGAINING PRACTICES BY ALLEGING THEIR UNIVERSAL APPLICATION IN THE LEGAL SYSTEMS OF ADVANCED INDUSTRIAL COUNTRIES.

Abstract

WEST GERMANY HAS A MAJOR LEGAL SYSTEM WHICH HAS SUCCESSFULLY AVOIDED ANY FORM OR ANALOGUE OF PLEA BARGAINING IN ITS SERIOUS CRIMINAL PROCEDURES. GERMAN CRIMINAL PROCEDURE WAS DESIGNED TO RESIST ADVERSARY DOMINATION AND EXCLUSIONARY RULES OF EVIDENCE, THUS KEEPING TRIALS UNCOMPLICATED AND RAPID. THE GENERAL PRINCIPLE IS THAT VIRTUALLY ALL RELEVANT EVIDENCE IS ADMISSIBLE. THE GERMAN SYSTEM HAS NO ANALOGUE TO VOIR DIRE OR TO THE LAW OF JURY CONTROL EVEN THOUGH LAYMEN SIT TOGETHER WITH PROFESSIONAL JUDGES ON EVERY TRIAL FOR SERIOUS CRIME AND HAVE AUTHORITY OVER MATTERS OF SENTENCING AS WELL AS GUILT DETERMINATION. MOREOVER, THOROUGH, OPEN, AND IMPARTIAL PRETRIAL PREPARATION ELIMINATES SURPRISE AND FORENSIC STRATEGY FROM GERMAN TRIALS. PROOF-TAKING IS NONADVERSARIAL IN CHARACTER, AND THE PRESIDING JUDGE PERFORMS UNDER A STATUTORY DUTY TO INVESTIGATE BOTH EXCULPATORY AND INCULPATORY EVIDENCE BASED ON THE OFFICIAL FILE ON THE CASE. A GERMAN TRIAL BEGINS WITH THE EXAMINATION OF THE ACCUSED, WHO FREQUENTLY CONFESSES SOME OR ALL THE CHARGES AGAINST HIM. SUCH CONFESSION SHORTENS BUT DOES NOT ABORT THE CRIMINAL TRIAL; THE COURT RETAINS ITS DUTY OF INDEPENDENT ADJUDICATION. THE ABOVE PROCEDURES, ALL OF WHICH CONTRAST WITH ANGLO-SAXON TRIAL PRACTICES, CONTRIBUTE TO THE SPEED WITH WHICH A TRIAL PROGRESSES, WITH ROUGHLY ONE-HALF OF GERMAN TRIALS LASTING APPROXIMATELY 2 HOURS. AS A RESULT, ALL CASES OF VERY SERIOUS CRIME ARE MANDATED TO GO THROUGH FULL TRIAL IN THE GERMAN SYSTEM. GERMAN PRACTICES MISCONSTRUED BY CRITICS AS FORMS OF PLEA BARGAINING INCLUDE THE PENAL ORDER PROCEDURE FOR WAIVING TRIAL IN NONIMPRISONABLE MISDEMEANOR CASES WITH OVERWHELMING EVIDENCE OF GUILT, CONFESSIONS AT TRIAL, AND A CONDITIONAL NONPROSECUTION SCHEME FOR PETTY CRIME, GENERALLY USED FOR TRAFFIC VIOLATORS. THE FEATURE LACKING IN ALL THESE PROCEDURES IS THE DIFFERENTIAL SENTENCING WHICH MAKES ANGLO-SAXON PLEA BARGAINING SO OBJECTIONABLE. FOOTNOTES ARE INCLUDED. (MRK)