The ‘Americanization’ of German Criminal Justice?

A while ago I went to a speech by an experienced German criminal-defense attorney. He was talking to young German lawyers thinking of entering this corner of the legal profession. I expected plenty of amusing war stories, and got them. What I didn’t expect was to hear so many familiar things: most of what the lawyer said about the German criminal justice system could conceivably have been said by an American criminal defense attorney.

A bit of background. Among people who study criminal justice systems, there’s a basic template that explains the difference between European and American criminal justice. It goes like this:

"Adversarial" America/England: A criminal trial is a rarity; since over 90% of all criminal cases are resolved through plea bargains.When a criminal trial does take place, the defendant usually denies guilt (regardless of whether he is guilty), and the criminal defense attorney tries, using all legal tactics, to prevent inculpatory evidence from being introducted against his client. Much depends on the whether the defendant can afford a good defense attorney, since the judge plays a mainly passive role. The attorney’s task is to vigorously represent his client’s interests, not to help the justice system achieve "the right" result. Therefore, as long as the defense attorney does not lie to the court, he or she is permitted to represent a guilty client.

"Inquisitorial" Europe: First, the principle that the prosecutor must prosecute all crimes that he believes have been committed means that "deals" or "plea bargains," as they’re called, are not officially tolerated and are rare. The judge plays an active role in shaping the proceedings; she is responsible for investigating the facts and making the decision whether the defendant is guilty or not. The lawyers play a secondary role, simply highlighting pieces of evidence that favor their interpretation of the case. Because there is no inexperienced jury that could be misled, there are many fewer technical rules for determining what sort of evidence the judge (and, in more serious cases, two lay jurors) hear. Thus, the proceeding is much more "truth-oriented"; there is less fighting about what can be considered by the judges, and more focus on what "actually happened."

Both of these sketches are exaggerated in order to make the contrasts clear. Nevertheless, in academic writing, it is still considered profitable to draw these contrasts. The book Trials Without Truth, for instance, argues that European trial systems are "stronger" and more truth-oriented than American systems, and offer a model for possible reform. However, that’s only the suggestion of a reformer. The real trend, some say, appears to be towards adopting certain aspects of American criminal justice. An acquaintance of mine, in fact, wrote an article arguing that American-style plea bargaining is become more prevalent across the world.

The speech by the criminal defense attorney also tended in this direction. The attorney talked about the conflict in role definition of German criminal defendants. Are they an Organ der Rechtspflege (rougly, an institution within the criminal-justice system), whose role is to assist the judge in determining the truth of what occurred and a just outcome that balances all parties’ interests? Or are they intended (consistent with the American model) to regard the State as an adversary, and to represent exclusively their accused clients’ interests? The lawyer said he tended towards the second, more independent conception of his role. He said that among the most aggressive criminal-defense lawyers, it was considered acceptable — even necessary — to do anything within the law to defend your clients’ rights, even provoking conflict with the judge or prosecutor.

The idea of an aggressively independent role for the criminal defense developed in earnest in the 1960s and 1970s, when the bar was called upon to defend political radicals and RAF terrorists. A recent essay on the subject puts it this way:

The criminal defense attorney in the 1950s tended more towards courtroom theatrics than attacks. A well-known Berlin defense attorney in the 1960s told his clients: "For 500 marks, you’ll get a good argument, for 1000 marks, I’ll cite world literature, and for 1500 marks, I’ll cry in front of the court.

For the left-wing attorneys, this belonged to the past. They understood their role as an "institution within the criminal justice system" differently. The 1964 reform of the criminal procedure laws, which broadened the rights of defendants and their attorneys, enabled them to live out this different understanding openly. The left-wing attorneys made extensive — and, to conservative judges, excessive — use of these procedural opportunities. They objected frequently to questions and insisted on the defendant’s right to deliver extensive explanations of their political motives…. The left-wing attorney did not want to serve the law together with the prosecutor and judge. He took that to be old-fashioned, authoritarian thinking. He wanted, as in the USA, to be required solely to represent his client’s interests.

[Stefan Reinecke, Die linken Anwaelte. Eine Typologie, in Die RAF und der linker Terrorismus, vol. 2, pp. 949-50, my translation].

Of course, a loud, aggressive criminal defense attorney is less popular than a subdued one, especially when the defendant has been accused of horrible cirmes. But, the lawyer told the students, you’ll just have to get used to that. Criminal defense lawyers have always been shoved into the Schmuddelecke (literally, "dirty corner") of the justice system. But the criminal defense lawyer doesn’t have to wait long for vindication — everybody denounces aggressive criminal defense attorneys until they themselves are accused of a crime.

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