Plea Bargaining in National and International Law

A Comparative Study

Regina Rauxloh

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136297717
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

Plea bargaining is one of the most important and most discussed issues in modern criminal procedure law. Based on historical and comparative legal research, the author has analysed the wide-spread use of plea bargaining in different criminal justice systems. The book sets out in-depth studies of consensual case dispositions in the UK, examining how plea bargaining has developed and spread in England and Wales. It also goes on to discusses in detail the problems that this practise poses for the rule of law by avoiding procedural safe-guards. The book draws on empirical research in its examination of the absence of informal settlements in the former GDR, offering a unique insight into criminal procedure in a socialist legal system that has been little studied. Drawing on her research findings, the author goes on to discuss the extent to which plea bargaining should be developed in the International Criminal Court in The Hague, as the question of this practise is set to be one of the seminal debates in the development of international criminal procedures in the new International Criminal Court.

Plea Bargaining in National and International Law will be of particular interest to academics and students of international criminal law, criminal procedures and comparative law.

V The absence of informal negotiations in the former GDR

I. Introduction

This chapter compares the Western criminal justice systems which today seem increasingly dependent on plea bargaining, with the practice of criminal law in a Socialist criminal justice system which surprisingly did not develop any form of informal case dispositions. Initially, I planned to compare the phenomenon of plea bargaining in three different national systems: England and Wales, as an example of a common law system, and (West-) Germany as a representative of the civil law jurisdiction, and the GDR representing the third traditional major law family, ie Socialist legality. After studying informal procedures in different legal systems, and repeatedly hearing claims of how inevitable they are, I had assumed that the GDR, which is constantly accused of having had its eyes closed to the rule of law, would have a variation of some kind of these practices as well. To my astonishment, as soon as I started my empirical research, I found that contrary to my expectations, there was no evidence of informal settlements between defence lawyer, prosecutor and judges in the former GDR, which could be compared to informal settlements in the West. There were some informal encounters, but no form of agreement, which involved an exchange between the defence, the prosecution or court, could be identified by my empirical research. Nearly all the interviewees expressively denied any form of informal negotiations¹ :

Judge 27:

As it is today – that one fi rst asks for a legal conversation and then already has everything negotiated [before trial] and because there might be three witnesses and there might be someone else sitting in the courtroom, one plays a bit of a show, 10 minutes, a quarter of an hour – that would be inconceivable in the GDR. The administration of justice, I would say, was run more correctly. That there was sometimes underhand dealing in individual cases, might have happened, but I personally, as a criminal law judge, with so many prosecutors [I have worked with], I have never experienced such a thing. I didn’t do it, for one thing, but also never did anybody else approach me […]. This did not exist. He [the prosecutor] put forward his recommendation of sentence, and I wouldn’t know his opinion on how to decide the case until his fi nal summing up. And that is worse today. But also more comfortable, simply because otherwise one could not cope with the case pressure. One simply has to shorten certain things, simply to avoid leaving the large number of other cases undone.

One prosecutor claimed that any engagement in informal bargaining would have immediately resulted in a disciplinary action. Likewise, judges would not allow informal agreements:

Question:	Could defence counsel, prosecutor, and judge discuss a case?
Judge 1:	No. This did not exist in the GDR. It does happen today, the so-called deal, but not in the GDR, as far as I know, not. One could have a legal discussion, but that a lawyer came to my offi ce and wanted to agree on a specific case, did not happen.

One judge revealed a considerable moral threshold to informal proceedings when he answered the question on whether during trial he could put any pressure on the defendant to confess: ‘I would not have been able to justify this to myself’.

Judge 5:	Such a thing did not exist at all. This did not happen. I don’t know these agreements at all.
Question:	How come?
Judge 5:	A thing like that was not known in the legal system of the GDR. When it is said today that there were arrangements in political procedures – as I said before – I don’t know such agreements and we didn’t have any arrangements. This was not possible in the legal system of the GDR. Obviously, as a judge I cannot do some wheeling and dealing with the defence counsel and the prosecutor. That did not happen. I don’t know about any. In political cases I heard after the reunifi cation that they had such dealings, but for me it was completely unknown

Other interviewees pointed out that judges, prosecutors and defence lawyers were too distinct and distant in their roles.² Each of them presented their own position only, without any arrangements between each other. Some prosecutors would not even allow any exchange of information or opinion about a specified case at all.

Question:	Did you sometimes discuss cases with the defence counsel?
Prosecutor 13:	What do you mean, discuss? There was nothing to discuss. After all, we were two really different parties. No, no, that did not exist, that was not custom.

One can distinguish between two kinds of informal exchanges in the GDR prior to hearings or during breaks. First, there were agreements on practical matters, for example the judge tried to find a trial date that would suit all participants.³ Or prosecutor and defence counsel would discuss whether there was a need to examine more witnesses. Whereas informal settlements would have been scorned at, agreements on scheduling were regarded as legitimate.⁴ In contrast to West Germany, where these questions are often taken as a starting-point for informal bargains, according to my research, these conversations did not go beyond organisational issues, nor did they include any exchange of favours.

Secondly, the purpose of talks between defence lawyer and prosecutor before the trial was often to find out what the opponent thought about the case and whether there was more information on the other side:

Question:	And what were these discussions about?
Lawyer 19:	They were usually specifically about the case. The prosecutors usually put their cards on the table and said ‘we see it like this and consider it legally like that and we will ask for such and such sentence’. And then we said, we see it like this and will ask for a different sentence. Well, the court was wise and chose a middle ground.
Question:	I would like to clarify: both of you simply stated your legal opinion about the case? What then was the reason for this discussion, since this would happen during trial anyway?
Lawyer 19:	This would happen afterwards during trial, but the reason behind the conversation was in principle to check whether there were any more issues on the prosecutor’s side that had not come into the case so far, but might have been negative for my client. That is what the defence counsel tried to find out. And the prosecutors for their part tried to fi nd out whether there are any facts that the client has confided to the lawyer that [the prosecutor] doesn’t yet know. And that he [the lawyer] might reveal. And then [the prosecutor] can think about whether to use it or not or whether they have to initiate further investigation or something. That was the reason behind this exercise, to sound each other out, to check out each other a bit. Sometimes there were telephone contacts in preparation for a case with the prosecution, when organisational issues were discussed, how long the case would probably take and how it would be structured, so that the lawyer could prepare the defence. I know this only from hearsay.
Question:	Did it happen that one said ‘Come on, I can push my client to confession and in turn we keep another issue out’ or something like that?
Lawyer 19:	The ‘Deal’?
Question:	Yes.
Lawyer 19:	Dealing was scorned at. That could happen, but would be scorned at. The prosecution said, ‘everything that we can find out and prove we prosecute’. They were aware that they only knew the tip of the iceberg, but whether the one or the other thing could be added doesn’t matter; we don’t need it for a conviction. And if there are any other crimes in the background that cannot be proven, because there is no confession or any other evidence, well, then we ask for a higher sentence. That would be the result: to use the higher scope of the sentence.

Defence lawyers would ask to see the files and identify the accusations, and what evidence had been found so far. Sometimes the defence lawyer would speak to the prosecutor about points they had not taken into consideration before. The defence lawyer might try to point out facts in favour of the defendant and thus influence the prosecutor, but, as my interviewees kept emphasising, it was an exchange of opinions, rather than any bargains or agreements. Even these non-committal conversations between defence lawyers and prosecutors were infrequent.

According to my research, defence lawyers would sometimes advise their clients to confess, but only if the evidence against them was very strong. The confession in these cases might have been a strategic manoeuvre, but there was no quid pro quo for the defendant. It was usually not the custom of the prosecutor to tell the accused that they could expect a milder sentence in the case of a confession. One prosecutor explained that there was a general understanding that any promise would make the accused adjust and behave differently the next time they would be interrogated (for example in the case of recidivists): ‘because then he knows, that we don’t work honestly here’. In addition, the interviewees said that before trial, the prosecutor could not make any promises, because they had no assurance th...

Table of contents

• Front Cover
• Plea Bargaining in National and International Law
• Title
• Copyright
• Dedication
• Contents
• I Introduction
• II The development and the impact of plea bargaining in the English criminal justice system
• III Informal settlements in Germany
• IV Socialist and liberal criminal justice
• V The absence of informal negotiations in the former GDR
• VI Plea bargaining in the International Criminal Court
• VII The informality of informal procedures
• Bibliography
• Index