NCJ Number
14504
Journal
University of Chicago Law Review Volume: 41 Issue: 3 Dated: (SPRING 1974) Pages: 468-505
Date Published
1974
Length
38 pages
Annotation
DISCUSSION OF THE PROSECUTOR'S ROLE IN THE DECISION TO CHARGE, EMPHASIZING VARIATION FROM THE TRADITIONAL RULE OF COMPULSORY PROSECUTION.
Abstract
THE WEST GERMAN SYSTEM OF CRIMINAL PROCEDURE, UNLIKE THE AMERICAN, ATTEMPTS TO CONTROL PROSECUTORIAL ACTIVITIES BY THE CONCEPTS OF COMPULSORY PROSECUTION AND RESTRAINED DISCRETION. WITHIN THIS FRAMEWORK, HOWEVER, A CONSIDERABLE AMOUNT OF PROSECUTORIAL DISCRETION IN THE CHARGING DECISION IS EXERCISED. IN THIS STUDY, PROFESSOR HERRMANN INVESTIGATES THE GERMAN PROSECUTOR'S DISCRETION, ITS LIMITS, AND ITS PATTERN. HE INTRODUCES THE DOCTRINE OF COMPULSORY PROSECUTION OF FELONIES AND SERIOUS MISDEMEANORS. IF THE PROSECUTOR FAILS TO BRING CHARGES IN CASES WHERE SUFFICIENT EVIDENCE EXISTS, HE MAY FACE CRIMINAL LIABILITY. IN ADDITION, THE VICTIM-COMPLAINANT MAY PROSECUTE PRIVATELY OR VETO THE PROSECUTOR'S DECISION TO BRING CHARGES IN THE PUBLIC FORUM, ABSENT ANY 'SPECIAL PUBLIC INTEREST' IN THE PROSECUTION. IN CERTAIN OTHER CLASSES OF CASES, HOWEVER, THE PROSECUTOR MANIFESTS CONSIDERABLE DISCRETIONARY AUTHORITY. IF THE PROSECUTOR DETERMINES THAT THE PUBLIC INTEREST DOESN'T DEMAND PROSECUTION, HE MAY REFUSE TO BRING CHARGES IN MOST MISDEMEANOR SITUATIONS IF HE FINDS THE GUILT OF THE ACCUSED TO BE MINOR. ALTHOUGH JUDICIAL APPROVAL OF THIS DECISION IS REQUIRED, THE AUTHOR NOTES THAT IT IS ROUTINELY GRANTED. PLEA BARGAINING, REGARDED WITH DISFAVOR BY WEST GERMANS, IS BEGINNING TO APPEAR MORE FREQUENTLY IN SUBTLE FORMS. THE AUTHOR SUGGESTS THAT THIS TREND FROM A HIGHLY STRUCTURED, RULE ORIENTED SYSTEM TO BE ONE WHICH PERMITS DISCRETIONARY DECISIONS BY THE PROSECUTOR, MAY ENHANCE THE EFFECTIVENESS OF THE WEST GERMAN CRIMINAL JUSTICE SYSTEM. (SNI ABSTRACT)