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

Abstract

In this article, I compare pre-trial procedures in Germany and the United States and probe the extent to which prosecutor’s decision-making practices deviate from each system’s normative goals. In both countries, the daily practice of the key players in both criminal justice systems continues to shift as the result of ever-increasing resource constraints and a varied array of organizational incentives. These shifts have created areas of both convergence and divergence. On the one-hand, in an era in both countries in which the number of cases resolved through a full-fledged public trial is decreasing, the course of pre-trial practice has become more outcome-determinative. Faced with a heavy caseload, a German prosecutor who receives a file in which the initial facts appear to be weak, may dismiss the case right out of the gate. On the other hand, carrying the mantle of a “party” rather than as an “organ of justice,” an American prosecutor who views the same investigation file may be more likely to seek some level of conviction through a plea agreement. Viewed solely through the goal of “finding the truth,” the shortened investigation process in both cases raises questions about whether the outcome fulfilled the retributive and rehabilitative objectives of the criminal law. On the other hand, in an era of tight resources, both outcomes appear to efficiently resolve the dispute at issue. In both cases, the shortened process also impacts, and perhaps undercuts, the traditional role of the fact-finder, be it a jury in the United States or a German judicial panel. Consequently, in many cases, bureaucrats in both countries are functioning as the arbiters of justice rather than simply as the head of the investigation process.

This shift in institutional roles casts doubt on the degree to which the normative vision underlying each system’s path to “truth” informs prosecutors’ practice routines. By highlighting this development, this chapter will explore the widening disconnect between the law in action and these two normative visions of the truth-finding process. I then describe how some facets of pre-trial practice in both in both countries today undermine the objective to find the truth. After highlighting these problematic features, I suggest that the way to right the ship is, not to strengthen the law, but to more closely examine the organizational incentives that guide prosecutorial decision-making today.