Procedural Economy in Pre-Trial Procedure: Developments in Germany and the United States

Imprisoned But Innocent: Wrongful Convictions and Imprisonments in Germany, 1990-2016

“…Germany has an inquisitorial system of criminal procedure in which evidence taking is primarily a task of the courts and not of the prosecutors and the defense attorneys whereby the impact of attitude and dedication of these parties is diminished (Boyne, 2016; Eser, 2014; Grunewald, 2013; Krey, 1999). The German court needs to make an overall assessment of all the reported incriminating and exculpatory evidence, and judges are even obliged to extend their taking of evidence to all facts and means of proof they find relevant to the decision.…”

“…Consequentially, duties of the prosecution office in criminal proceedings differ: The German prosecutor, as a “ruler over the criminal investigation” (Krey, 1999, p. 597), is in a position to instruct police and to lead the investigation (Boyne, 2016; Elsner & Peters, 2006). The often cited alleged words of a prosecutor more than a century ago described the German prosecutor’s office as “the most objective authority in the world” (see Rautenberg, 2014, p. 214)—a statement which is well known and at the same time often discussed and doubted (e.g., Carsten & Rautenberg, 2012; Rautenberg, 2014).…”

“…According to the German “principle of legality,” all crimes known to the police have to be prosecuted, and there is a limited set of exceptions only, for example, for minor offenses (Eser, 2014; Krey, 1999). In practice, these minor offenses make up a large proportion of prosecutors’ workload, and these exceptions are nowadays common endings of criminal proceedings (Boyne, 2016; Elsner & Peters, 2006). Still a difference remains: Although in Germany, a dismissal of cases is only possible if the state’s interest in prosecution is low or the defendant’s culpability is limited, the U.S. system always provides the opportunity of plea bargains which tend to occur in the vast majority of all proceedings (Joy, 2006).…”