Abstract
While prior research studies of the German prosecution function have emphasized how bureaucratic organizational practices have shaped the prosecutorial behavior during the case investigation stage, those studies shed little light on prosecutorial decision-making in the courtroom (Asmus 1988). In this chapter I explore that gap and examine whether prosecutors' courtroom decisions reflect their duty to be objective fact-finders. I argue that prosecutors interpret and perform their duty to function as second judges differently and those differences impact the outcome of the truth-finding process.
Portions of this chapter appeared previously in the Washington and Lee Law Review: Shawn Marie Boyne, Uncertainty and the Search for Truth at Trial: Defining Prosecutorial “Objectivity” in German Sexual Assault Cases, 67 Wash. & Lee L. Rev. 1287 (2010). I thank the editors of the law review for permission to republish those sections.
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Notes
- 1.
I observed these trials during an extended period of field research conducted in Germany between 2005 and 2008.
- 2.
§§243, 244 StPO.
- 3.
§238(1) StPO.
- 4.
§§28, 29 GVG.
- 5.
§§74–76 GVG.
- 6.
§199 StPO.
- 7.
§240 StPO.
- 8.
§258(1) StPO.
- 9.
§160 StPO.
- 10.
§199 StPO.
- 11.
Prosecutor Interview [6SB], 23 February 2006.
- 12.
Ministry of Justice Interview [9CK], 4 May 2006.
- 13.
Public Prosecutor Interview [4GG], 30 January 2006.
- 14.
§293(1) StPO.
- 15.
Participant Observation [3TW], 9 November 2005. I observed the conclusion of a main proceeding in a fraud case involving two female defendants who had ordered a number of products online but never paid for the products. In the prosecutor’s final argument, the prosecutor pointed out that the value of the fraud committed had been relatively small and that the merchandise ordered were gifts for one of the defendant’s children. The prosecutor also mentioned that both defendants had confessed and that they had expressed remorse. The prosecutor then moved on to point out that the main points against the defendants were that their criminal behavior reflected a certain level of initiative and intelligence. For example, the defendants had put false names on their mailboxes that corresponded to the aliases that the suspects had used to order the merchandise.
- 16.
Public Prosecutor Interview [8AR], 23 May 2006.
- 17.
Appellate Judge Interview [18UE], 24 June 2004.
- 18.
Senior Prosecutor Interview [5BC], 16 January 2006.
- 19.
Senior Prosecutor Interview [5BC], 16 January 2006.
- 20.
Appellate Judge Interview [18UE], 24 June 2004.
- 21.
Public Prosecutor Interview [5DK], 19 January 2006.
- 22.
Public Prosecutor Interview [12CJ], 19 November 2005.
- 23.
§§158–77 StPO.
- 24.
Ministry of Justice Interview [9CK], 4 May 2006.
- 25.
Appellate Judge Interview [13MU], 10 April 2004.
- 26.
Public Prosecutor Interview [3TW], 8 November 2005.
- 27.
§239 StPO.
- 28.
Public Prosecutor Interview [12CJ], 29 November 2005.
- 29.
Ministry of Justice Interview [9CK], 4 May 2006.
- 30.
Ministry of Justice Interview [9CK], 4 May 2006.
- 31.
As one former judge explained to me, in some cases, at first glance it may look like there is disagreement between the sentencing recommendation made by the prosecutor and the judges, but the prosecutor for strategic reasons will recommend a sentence that is more severe than the sentence that the court will impose. By inflating his or her sentencing recommendation, the prosecutor may be trying to increase the likelihood that the defendant will not file an appeal. The greater the difference between the judge’s final determination and the prosecutor’s recommendation, the likelier it is that the defendant will not challenge the sentence by filing an appeal. Ministry of Justice Interview [9CK], 4 May 2006.
- 32.
Public Prosecutor Interview [5DK], 19 January 2006.
- 33.
Public Prosecutor Interview [8PT], 23 May 2006.
- 34.
Public Prosecutor Interview [8PT], 23 May 2006.
- 35.
See §177 StGB which states: “Whoever coerces another person 1) with force; 2) by a threat of imminent danger to life or limb; or 3) by exploiting a situation in which the victim is unprotected and at the mercy of the perpetrator’s influence, to suffer the commission of sexual acts of the perpetrator or a third person on himself or to commit them on the perpetrator or a third person shall be punished.”
- 36.
Public Prosecutor Interview [8PT], 23 May 2006.
- 37.
Public Prosecutor Interview [7CX], 7 April 2006.
- 38.
Public Prosecutor Interview [8AR], 23 May 2006.
- 39.
Public Prosecutor Interview [13WT], 18 November 2005.
- 40.
See Participant Observation [13WT], 8 December 2005.
- 41.
See §223 StGB which states: “(1) whoever physically maltreats or harms the health of another person, shall be punished with imprisonment for not more than five years or a fine. (2) an attempt shall be punishable.”
- 42.
Participant Observation [13WT], 8 December 2005.
- 43.
As the proceedings were not recorded or taped, I compiled the “transcript” from my hand-written notes recorded in court during the proceeding.
- 44.
Public Prosecutor Interview [13WT], 18 November 2005.
- 45.
Public Prosecutor Interview [13WT], 18 November 2005.
- 46.
Public Prosecutor Interview [7CX], 7 April 2006.
- 47.
Public Prosecutor Interview [24AZ], 10 April 2008.
- 48.
Public Prosecutor Interview [13WT], 18 November 2005.
- 49.
Public Prosecutor Interview [13WT], 18 November 2005.
- 50.
See §179 StGB. Section 179 states: (1) whoever abuses another person who is incapable of resisting; 1) because of a mental or emotional illness or disability, including an addiction or because of a profound consciousness disorder … Imprisonment for no less than one year shall be imposed, if: the perpetrator completes an act of sexual intercourse or similar sexual actions with the victim, which are combined with a penetration of the body, or allows them to be committed on himself by the victim.
- 51.
Public Prosecutor Interview [13WT], 18 November 2005.
- 52.
Punishment for a serious sexual abuse of a child is codified in §176a of the StGB (defining punishment for sexual abuse of children That section provides:
-
(1)
The sexual abuse of children shall be punished with imprisonment for no less than one year in cases under Section 176 subsections (1) and (2), if:
-
1.
a person over eighteen years of age completes an act of sexual intercourse or similar sexual acts with the child, which are combined with a penetration of the body, or allows them to be committed on himself by the child;
-
2.
the act is committed jointly by more than one person;
-
3.
the perpetrator by the act places the child in danger of serious health damage or substantial impairment of his physical or emotional development; or
-
4.
the perpetrator has undergone a final judgment of conviction for such a crime within the previous five years …
-
1.
-
(2)
In less serious cases under subsection (1), imprisonment from three months to five years shall be imposed, in less serious cases under subsection (2), imprisonment from one year to ten years.
-
(1)
- 53.
Participant Observation [4AJ], 1 February 2006.
- 54.
§395 StPO.
- 55.
While this statement would undoubtedly draw an objection in an American court because it is not a question, German procedural rules permit a wider range of questioning practices. See §136(a) StPO (delineating the boundaries of questioning broadly).
- 56.
A 1 year sentence would apply only if the court found the defendant guilty of the less serious offense. See StGB §176a (mandating a minimum 2-year sentence for aggravated child abuse).
- 57.
See Bundesgerichtshof [BGH] [Federal Court of Justice] 3 March 2005, 50 Entscheidungen des Bundesgerichtshofs in Strafsachen [BGHSt] 40, 48 (holding that plea bargains are generally permissible under German law).
- 58.
In cases involving the testimony of children under the age of 16, the judge screens the defense attorney’s questions and then may decide which questions will be permitted as well as whether the judge or the defense attorney shall pose those questions to the child. See, §241(a) StPO (granting the judge the authority to screen potential questions posed to witnesses under the age of 16).
- 59.
Public Prosecutor Interview [8AR], 23 May 2006.
- 60.
Public Prosecutor Interview [8AR], 23 May 2006.
- 61.
See, §241(2) StPO (allowing the presiding judge to reject an inappropriate or irrelevant question).
- 62.
Public Prosecutor Interview [4AJ], 1 February 2006.
- 63.
The jurisdiction of the Amtsgericht is specified in sections 21 and 24 of the German Code on Court Constitution, while the jurisdiction of the Landgericht is specified in §74. See generally GVG, §§21–21(j), 24, 74–74(f) (regulating the jurisdiction of the Amtsgericht and the Landgericht). It is currently an undecided issue in German law as to whether rape cases may be filed directly into the Landgericht or regional court, bypassing the local court (Amtsgericht). Public Prosecutor Interview [4AJ], 1 February 2006. The prosecutor who tried the case told me that he would have filed the case directly into the Landgericht and that prosecutor who initially filed the case in the local court may have made that choice because it was easier for him to do so. However filing the case in the local court places an extra burden on the victim. Because defendants in local court (Amtsgericht) cases have the right to de novo appeal, the victim may have to testify in two proceedings. Regional Court (Landgericht) trials typically take longer than local court (Amtsgericht) proceedings as the court is likely to take testimony from all of the available witnesses. The reason for this is that there is only one level of appeal from cases heard at the regional court (Landgericht) level—an appeal to the Federal Criminal Court challenging legal issues in the case.
- 64.
Public Prosecutor Interview [4AJ], 1 February 2006.
- 65.
Public Prosecutor Interview [4AJ], 1 February 2006.
- 66.
Public Prosecutor Interview [13WT], 18 November 2005 (noting that it is often difficult to be certain who is telling the truth in rape cases because you must often weigh the victim’s word against the defendant’s word).
- 67.
Public Prosecutor Interview [5DK], 19 January 2006.
- 68.
Strehlen is a fictitious name that I have assigned to the city where the proceeding was held.
- 69.
Participant Observation [13WT], 8 December 2005.
- 70.
According to §176a StGB, the minimum punishment is a term of imprisonment no less than 1 year the maximum punishment is 10 years of imprisonment. See §176a StGB.
- 71.
Participant Observation [4BI], 24 February 2006.
- 72.
German procedural law permits a smaller panel of Landgericht judges to hear less serious cases. See GVG, §76(2) (providing that the chief judge may decide, at the beginning of the main proceedings, whether it will be composed of only two judges unless the participation of a third judge appears necessary due to the scale or complexity of the case).
- 73.
Although prosecutors and judges acknowledge that defendants have a right to an attorney under German law, many of them look on the so-called “conflict defense attorneys” (Konfliktverteidiger) with disdain. Public Prosecutor Interview [13WT], 18 November 2005 (noting that these attorneys are “bad lawyer[s]” whose clients receive a “higher punishment… The defense counsel’s job is to secure a confession.”).
- 74.
Public Prosecutor Interview [4BI], 3 February 2006.
- 75.
Public Prosecutor Interview [5CK], 22 January 2006.
- 76.
Public Prosecutor Interview [4BI], 3 February 2006.
- 77.
§244(2) StPO.
- 78.
§245(2) (obliging the court to extend the taking of evidence to witnesses summoned by the defendant or prosecutor).
- 79.
Public Prosecutor Interview [4BI], 3 February 2006.
- 80.
Public Prosecutor Interview [4BI], 3 February 2006.
- 81.
Public Prosecutor Interview [4BI], 3 February 2006.
- 82.
When I asked prosecutors what the role of the defense attorney was, many prosecutors criticized defense attorneys who adopted a confrontational courtroom style. As one prosecutor explained to me:
I think it’s good to be aggressive, if you feel that there’s a chance for you at the end that the judge thinks that, “Okay, maybe he hasn’t committed the crime.” That’s okay. It is the task of [a] good defense attorney. But in cases where you have a defense attorney that makes mistakes and I think he is not a bad one but you see I think in those cases then we help him. We say let us do it this way, it is better for the client and if he says okay I think you are right. Then I think it’s no problem if you have a bad lawyer. But I think as I told you, these cases, if there’s a case, for example. Rape is a typical case. In rape, you have to see at the beginning of a trial if you are a good defense attorney, you have to [look at] this case [and ask] what should you do? Then I think it’s better for you to say, ‘Okay, my client’s guilty, but you have to tell the reasons he did what he did.’ But sometimes the lawyer is not good then they blame the victim, the victim was guilty and then you are aggressive against them. I think judges, that is not okay. I think you get a higher punishment. Public Prosecutor Interview [13WT], 18 November 2005.
- 83.
§244(2) StPO.
- 84.
§150 GVG.
- 85.
See, e.g., Public Prosecutor Interview [8AR], 23 May 2006 (asserting that, on multiple occasions, she has petitioned the court for an acquittal because she was unconvinced of the defendant’s guilt).
- 86.
See Public Prosecutor Interview [6SB], 23 February 2006 (stating that a colleague had twice filed appeals arguing for a lower sentence).
- 87.
Public Prosecutor Interview [13BR], 18 November 2005.
- 88.
Appellate Judge Interview [22FE], 22 July 2004 (stating that close working and social relationships and similar backgrounds make it unlikely that prosecutors and judges will oppose each other in the courtroom).
- 89.
Public Prosecutor Interview [8AR], 23 May 2006.
- 90.
Public Prosecutor Interview [8AR], 23 May 2006.
- 91.
Appellate Judge Interview [22FE], 22 July 2004.
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Appendices
Legislation
7.1.1 Code of Criminal Procedure (StPO)
Sections:
-
24, 25, 28, 29, 30, 74–76,
-
142(1) 142(2), (3), 152(1), 153, 153(1), 160, 160(2), 199
-
200, 238(1), 239, 240, 243, 244, 244(2), 249, 250, 252–60, 257c, 258(1), 296, 296(2),
-
323, 324, 395, 397
7.1.2 Code of Criminal Law (StGB)
Sections:
-
164, 176(a), 177, 179
-
223, 249
7.1.3 Other Laws
Gerichtsveerfassungsgestez [GVG] [Courts Constitution Act], 12 September 1950, Bundesgesetzblatt [BGBL] 1, amended §§24, 25 (Ger.).
Richtlinien Für Das Stafverfahren und Das BußGeldvergahren [RISTBV] [Guidelines for Criminal and Fine Proceedings] §§138, 139.
Stafgesetzbuch [StGB] [Penal Code], 13 November 1998, Bundesgestezblatt, Tiel 1 [(BGBL 1] at 3322, as amended §177 (Ger.)
Bundesgerichtshof [BGH] [Federal Court of Justice] 3 March 2005, 50 Entscheidungen des Bundesgerichtshofs in Strafsachen [BGHST] 40, 48.
Gerichtsveerfassungsgestez [GVG] [Courts Constitution Act], §§21–21j, 24, 74–74f.
Reports/Statistics
Bundesgerichtshof [BGH] [Federal Court of Justice] 28 august 1997, Neue Juristische Wochenschrift [NJW] 43 (195), 1997.
Interviews
Appellate Judge Interview [22FE], 22 July 2004.
Appellate Judge Interview [13MU], 10 April 2004.
Appellate Judge Interview [18UE], 24 June 2004.
Ministry of Justice Interview [9CK], 4 May 2006.
Participant Observation [3TW], 9 November 2005.
Participant Observation [13WT], 8 December 2005.
Participant Observation [4AJ], 1 February 2006.
Participant Observation [4BI], 3 February 2006.
Public Prosecutor Interview [4AJ], 1–2 February 2006
Public Prosecutor Interview [4BI], 3 February 2006.
Public Prosecutor Interview [4GG], 30 January 2006.
Public Prosecutor Interview [5CK], 22 January 2006.
Public Prosecutor Interview [5DK], 19 January 2006
Public Prosecutor Interview [6SB], 23 February 2006.
Public Prosecutor Interview [7CX], 7 April 2006.
Public Prosecutor Interview [8AR], 23 May 2006.
Public Prosecutor Interview [8PT], 6 December 2005.
Public Prosecutor Interview [9BU], 4 May 2005.
Public Prosecutor Interview [12CJ], 29 November 2005.
Public Prosecutor Interview [13BC], 12 December 2005.
Public Prosecutor Interview [13BR], 18 November 2005.
Public Prosecutor Interview [13WT], 6 December 2005.
Public Prosecutor Interview [18UE], 24 June 2004.
Public Prosecutor Interview [24AZ], 10 April 2008.
Senior Prosecutor Interview [5BC], 16 January 2006.
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Boyne, S.M. (2014). The Many Faces of Objectivity in the Courtroom. In: The German Prosecution Service. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-40928-8_7
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