Plea bargaining and disclosure in Germany and the United States: comparative lessons.

• Author: Turner, Jenia I.
• Position: Plea Bargaining Regulation: The Next Criminal Procedure Frontier

ABSTRACT

This Article analyzes recent trends in plea bargaining and disclosure of evidence in Germany and the United States. Over the last two decades, a number of U.S. jurisdictions have adopted rules requiring broader and earlier discovery in criminal cases. This development reflects a growing consensus that, in a system that resolves most of its cases through guilty pleas, early and extensive disclosure is necessary to ensure fair and informed outcomes.

The introduction of broader discovery in criminal cases in the United States aligns American rules more closely with longstanding German rules on access to the investigative file. At the same time, through its increasing reliance on negotiations to resolve criminal cases, the German criminal justice system has itself moved closer to the U.S. model of plea-based criminal justice. As the approaches of the two countries to disclosure and plea bargaining converge, it is worth reflecting on the German experience and examining which features of the German model have proven effective and which continue to pose challenges. The analysis of the German system offers some general ideas on regulating discovery and plea bargaining that could be of interest to U.S. scholars and policymakers, even if a number of the specific rules of German criminal procedure do not fit within the American adversarial tradition.

TABLE OF CONTENTS INTRODUCTION I. DEFENSE RIGHT TO INSPECT THE INVESTIGATIVE FILE IN GERMAN CRIMINAL CASES A. Scope of Right to Inspect During the Investigative Stage B. Scope of Right to Inspect After Charges Are Filed C. Contents and Completeness of the File D. Defendant and Defense Attorney: Different Rights of Access to the File E. Lack of Reciprocal Disclosure by Defense Attorneys II. THE RELATIONSHIP BETWEEN DISCLOSURE AND PLEA BARGAINING IN GERMAN CRIMINAL CASES III. COMPARING GERMAN DISCLOSURE RULES TO OPEN-FILE DISCLOSURE IN THE UNITED STATES IV. OPEN-FILE DISCOVERY AND BEYOND: COMPARATIVE INSIGHTS CONCLUSION INTRODUCTION

Guilty pleas have become the standard method of conviction in the American criminal justice system, and the staying power of plea bargaining is no longer in doubt. Yet even as criminal trials stand out as anomalies, many important criminal procedure rules remain tethered to the trial stage. The prosecutor's duty to disclose evidence is one such rule. (1) In many U.S. jurisdictions, certain evidence must be disclosed before trial, but not necessarily before a guilty plea. (2) Even certain potentially exculpatory evidence may be withheld from defendants before they plead guilty. (3) The different disclosure requirements at the pre-plea and pretrial stages have been defended on the grounds that early disclosure is more costly and increases risks to witnesses. (4)

While acknowledging these concerns, a number of observers have argued that early and broad disclosure is critical to ensuring fair and informed guilty pleas. (5) Liberal pre-plea disclosure enables defense attorneys to counsel their clients more effectively, especially when those attorneys might lack the time or resources to investigate independently. (6) It allows defendants to make more informed decisions about pleading guilty or proceeding to trial. (7) By enabling the defense to respond to the charges early on, pre-plea discovery also gives the prosecution a better understanding of potential weaknesses in the case before trial. (8) And as both parties gain greater clarity about the facts in a timely fashion, early discovery facilitates a speedier resolution of the case. (9)

Lawmakers across the United States are increasingly hearing these arguments in favor of broader pre-plea discovery. High-profile exonerations have revealed that the withholding of evidence is a key factor contributing to wrongful convictions. (10) While most of the uncovered wrongful convictions followed trials, roughly 13 percent resulted from guilty pleas. (11) Recognizing the unfairness and unjust outcomes that restrictive disclosure can produce, a number of U.S. states have reformed their discovery laws over the last decade to require earlier and more extensive disclosure by the prosecution. (12)

As U.S. jurisdictions continue to debate the scope of discovery and the effect it might have on witness safety and the efficiency of plea bargaining, it is useful to consider how other countries have approached these issues. In this Article, I examine how Germany, a country that requires extensive disclosure in criminal cases, has handled some of these same questions. I also discuss how the German system has integrated rules on discovery with rules on plea bargaining.

The German approach is useful to study for several reasons. The introduction of broader and earlier discovery in criminal cases in the United States aligns our rules more closely with German rules on access to the investigative file. (13) At the same time, plea bargaining has become common practice in Germany since the 1980s, and it has been closely regulated by courts and by statute. (14) As the approaches of the two countries converge, it is worth reflecting on the German experience and examining which features of the German model have proven effective and which continue to pose challenges.

At the most general level, the German experience provides additional support for arguments that early and broad discovery should be a central feature of a fair criminal process. German courts and legislators have continually and unequivocally affirmed the defendant's right to inspect the evidence early in the pretrial process, and the scope of this right has expanded over time. (15) This expansion has occurred without undue risks to witness safety, at least in part because legislation has also provided for measures to minimize the conflict between open-file discovery and witness protection. (16) During the investigative stage, prosecutors may limit defense access to certain evidence gathered by the authorities in order to protect the integrity of the investigation and safety of witnesses. (17) Even after the investigation is complete, prosecutors and courts may keep certain witness identities and addresses confidential if a concrete risk from disclosure can be shown. (18) American open-file jurisdictions have adopted similar measures, but the German model provides another reference point for jurisdictions that are exploring how to balance witness safety and disclosure. (19)

The German discovery regime also suggests that open-file discovery need not undermine the efficiency of plea bargaining. The right of German defense attorneys to inspect the entire investigative file before plea negotiations is considered a critical guarantee of fairness and accuracy in the bargaining process, and negotiations have proceeded without concerns about the costs of such discovery. (20) The idea of bargaining away the right to discovery, while increasingly common in the United States, would be incomprehensible to German courts and practitioners. (21) In fact, while the German criminal justice system suffers from caseload pressures that are in many ways similar to those in our system, (22) German law generally regulates plea bargaining more closely than does U.S. state and federal law, and concerns about fairness and the search for truth outweigh considerations of efficiency. (23) As Part II discusses, the German Criminal Procedure Code and case law impose limits on plea discounts, formally ban most charge bargains and negotiated waivers, and demand a more probing review of the factual basis for admissions of guilt. (24) Reviewing how these rules intersect with open-file discovery to produce fairer dispositions in Germany could offer additional insights for U.S. policymakers who are considering implementing more robust regulation of plea bargaining.

The German experience offers lessons beyond the usefulness of broad pre-plea discovery. It highlights three areas in which even the most liberal, open-file pre-plea discovery regimes in the United States may be failing to fulfill their potential. First, the German model emphasizes the need for more elaborate rules on investigations--specifically, what evidence is collected and recorded in the "file" and conveyed to the prosecution (and, thus, subsequently to the defense). Second, it reveals the importance of guidelines requiring that investigations be complete, whenever possible, before plea negotiations occur. And third, it highlights some of the advantages of providing discovery to the court as well as to the parties.

Some of these lessons from the German experience may appear too foreign to our adversarial tradition to be adopted. Indeed, given our two countries' distinct legal traditions, cultures, and institutions, wholesale transplants of German discovery or plea bargaining regulations in a U.S. setting would not be desirable or feasible. (25) Yet a review of the German system remains helpful as a lens through which to examine more carefully ideas for reform of plea bargaining and discovery that are also independently emerging in a number of American jurisdictions. (26) Moreover, as the systems increasingly converge in areas such as disclosure and plea bargaining, comparative conversations become more useful and productive.

1. DEFENSE RIGHT TO INSPECT THE INVESTIGATIVE FILE IN GERMAN CRIMINAL CASES

   Some authors have suggested that "strictly speaking, there is no such thing as a 'disclosure process' in Germany." (27) Indeed, German codes and decisions never use the term "discovery" or "disclosure," instead referring to a right to inspect the investigative file (Akteneinsichtsrecht). As a practical matter, however, German rules on defense inspection of the file before trial are in many respects similar to open-file discovery rules adopted by some American jurisdictions over the last decade. (28) In Germany, as in open-file jurisdictions in the United States, the defense is allowed to view and copy the entire...