No plea bargains in Germany because of non-adversarial trial system
August 9, 2018 9:14 AM   Subscribe

Keeping Trials Honest by keeping them short and sensible America has a legal system which makes trials so long and expensive that plea bargaining and the conviction of innocent people is inevitable. Germany does it better.

Beginning of the link: "As the death grip of adversary procedure has tightened around the common law criminal trial, trial has ceased to be workable as a routine dispositive proceeding. Our criminal justice system has become ever more dependent on processing cases of serious crime through the nontrial procedure of plea bargaining. Unable to adjudicate, we now engage in condemnation without adjudication. Because our constitutions guarantee adjudication, we threaten the criminal defendant with a markedly greater sanction if he insists on adjudication and is convicted. This sentencing differential, directed towards inducing the defendant to waive his right to trial, makes plea bargaining work. It also makes plea bargaining intrinsically coercive. I have elsewhere had occasion to point to the host of irremediable deficiencies - moral, juridical, practical - that inhere in the plea bargaining system.'"

How false confessions are coerced
posted by Nancy Lebovitz (30 comments total) 30 users marked this as a favorite
 
More Langbein: The German Advantage in Civil Procedure [PDF].

I took Langbein's legal history course in law school, so I have perhaps been influenced by his way of thinking. But I find his argument completely persuasive. Many of the deep pathologies and resulting injustices in American law are directly traceable to the way cases are built around jury trials.
posted by grimmelm at 9:21 AM on August 9 [2 favorites]


This article is from 1979, which would tend to undermine its value. Is there any more recent scholarship on this point/reacting to this article?
posted by suncages at 9:32 AM on August 9 [1 favorite]


suncages, I have no reason to think the American system is any better than it was. A fast look didn't turn up changes in the German system. I'm hoping people who can read German can help out.
posted by Nancy Lebovitz at 9:40 AM on August 9


Talking to some American friends recently I was surprised at the number of times people get called up for Jury Service there. In my 19 years of being eligible I’ve never been called up once in the UK, most people only get called up at most once or twice in their lives.

I guess that’s because we have way fewer trials that go to a jury. I don’t have enough experience to know if that’s for better or worse!
posted by toamouse at 9:49 AM on August 9 [1 favorite]




Interesting. The article focuses on plea bargains, but I found the parts about trial length and adversarial procedures most interesting. As I understand it, one of the reasons for adversarial procedures around evidence is so that the court can act as a check on the police: If the police do something horrid or illegal while gathering evidence, the courts can refuse to admit that evidence, thus discouraging the police from doing that sort of thing again.

Another reason for adversarial evidence procedures is to exclude irrelevant but emotionally effective evidence from trials, like a woman's sexual history in a rape case.

How do/did the Germans deal with those concerns, I wonder? It seems like the whole system is set up in more of a trust-the-system way compared to Anglo-American adversarial procedures.
posted by clawsoon at 10:40 AM on August 9 [2 favorites]


I am always amazed that Americans believe that jury trials are a "right" that needs to be protected. In what way is having the facts determined by a panel of random people from off the street with zero expertise and a host of hidden biases a "right"??? Everywhere else in the world this is perceived as what it is - an arbitrary and random way of making factual determinations.

I'm amazed, that is, until I reflect that America has NO professional judicial corps, NO professional training for its judiciary, and that generally speaking judges in America are elected or appointed based on who they know. Meanwhile, in Germany, to become a judge one must pursue an educational track different from that for practicing attorneys and achieve the equivalent of a PhD in judging before being placed on the list of people who can be given a judge assignment.

The sad thing is that most American lawyers have never taken a single class in comparative or foreign law. Most American lawyers don't know that the common law system is NOT the world's dominant legal system. Many American states prohibit common-sense reforms like joint representation in divorce cases outright, and American lawyers still treat non-adversarial dispute resolution as a weird aberration. It's no wonder that there's no serious movement to reform America's atrocious legal system - even its professionals are completely ignorant that there's any other way to do things!
posted by 1adam12 at 10:50 AM on August 9 [12 favorites]


@toamouse: just a data point, but I am a Californian and I get called for jury duty every 12-24 months. Only once have I actually served on a jury. I suspect my presence in the jury room helps secure a plea deal. I am used as leverage.
posted by mosk at 10:52 AM on August 9 [3 favorites]


> I am always amazed that Americans believe that jury trials are a "right" that needs to be protected. In what way is having the facts determined by a panel of random people from off the street with zero expertise and a host of hidden biases a "right"??? Everywhere else in the world this is perceived as what it is - an arbitrary and random way of making factual determinations.

So Athenian democracy ran on the sortition system -- the holders of public offices were selected by lottery, rather than through election. For literally millennia it was understood that the method of sortition was how to do genuine democracy, since election processes are easily gamed by Big Men and therefore tend to result in oligarchy.

The jury system is the one trace of democracy, real no-foolin' democratic democracy, actual rule by the people, in the American system of government. It's not surprising that the state therefore treats the jury system as damage and routes around it.

You're arguing for rule-by-experts, which is (as you've observed) more of a worldwide norm than democratic rule is. And rule-by-experts seems totally, totally attractive as a system. It's totally sensible to think "ah, we have a tricky problem. Who should we get to resolve this tricky problem? I know, we should get people trained in the resolution of that category of problem."

The problem with this method is that the expert class, regardless of their training, is inevitably biased toward giving answers that reflect the experience of the expert class and thereby exclude the experiences of non-experts. Even if the members of the expert class are scrupulously honest and diligently avoid deliberate self-dealing, even in this case the experts can become uniquely bad at finding the right answers, because their very status as respected experts blinds them to the outcomes of their decisions when actually implemented.
posted by Reclusive Novelist Thomas Pynchon at 11:13 AM on August 9 [26 favorites]


American society is too corrupt to even begin to contemplate a German-esque system. If anything, it needs even more randomness -- randomly assigned judges, random attorneys, maybe even random court recorders.
posted by aramaic at 11:22 AM on August 9 [4 favorites]


In what way is having the facts determined by a panel of random people from off the street with zero expertise and a host of hidden biases a "right"???

That's not how jury trials were designed to work - the concept was, drag in 12 people from the local community, who know the local standards and the way people expect to be treated here, and have them decide whether the law was broken. If the claim was, "these two guys got into a fight and one of them broke the other's arm," the locals are best equipped to know if that was "not a crime - stay out of fights if you don't like that," or "assault - you're not supposed to fight that dirty," or "attempted murder - that is not how we work out our differences around here." The locals would have a better sense of what counts as unreasonable provocation than an outsider, and so on.

If you only need legal experts, to sort out the facts of what happened and whether that fits the pattern of a crime, you wouldn't need a jury. Juries are supposed to use their judgment to decide not just "are the people giving evidence being honest," but also, "is this actually worth the punishment the law provides?"

... Obviously, that leads to its own problems. Last I'd heard, Alabama has never convicted a white man for the murder of a black man.

In order to reduce bias, juries are selected from people who don't know the involved parties. And then selected from people who aren't directly involved in work related to the involved parties - if you work across the street from the bar where the murder took place, they don't want you on the jury. And this was taken to extremes, until we have "nobody on the jury should have any pre-existing opinions about the people, the industries, the location, or the type of crime involved."

So in urban areas, you get not only 12 random people, but 12 people who are selected to care as little as possible about what happened - so of course you get results of "I guess the cops know what they're doing."
posted by ErisLordFreedom at 11:31 AM on August 9 [10 favorites]


Ideally, juries (especially with jury nullification-- judging the law as well as the case) means that the legal system won't be worse than the public. This is a gamble.
posted by Nancy Lebovitz at 11:51 AM on August 9 [1 favorite]


I am always amazed that Americans believe that jury trials are a "right" that needs to be protected.

I mean, the 6th and 7th Amendments are pretty clear that it is, indeed, a right. Whether it needs to be protected is another question, but there's no getting away from it without a Constitutional amendment.

Last I'd heard, Alabama has never convicted a white man for the murder of a black man

Statistics and news stories about executions are easier to come by than convictions in general, but Henry Francis Hays (a KKK member) was executed by Alabama in 1997 for the 1981 murder of Michael Donald, a black man. That said, I'm sure Alabama, like just about everywhere in the country, is plenty racist when it comes to charging, conviction, and sentencing disparities.
posted by jedicus at 12:03 PM on August 9 [6 favorites]


I am always amazed that Americans believe that jury trials are a "right" that needs to be protected.

it's in our constitution

I'm amazed, that is, until I reflect that America has NO professional judicial corps, NO professional training for its judiciary, and that generally speaking judges in America are elected or appointed based on who they know.

although technically, in some jurisdictions, one doesn't have to be a lawyer to be a judge, it's extremely rare to have a judge without a legal degree - and it's also common for someone to become a judge after years of experience as a defense lawyer and/or a prosecutor

The sad thing is that most American lawyers have never taken a single class in comparative or foreign law. Most American lawyers don't know that the common law system is NOT the world's dominant legal system.

it isn't even america's most dominant legal system, as constitutional law trumps common law

i skimmed through the description of german law and americans are too corrupt to practice it
posted by pyramid termite at 12:53 PM on August 9 [2 favorites]


ErisLordFreedom: That's not how jury trials were designed to work - the concept was, drag in 12 people from the local community, who know the local standards and the way people expect to be treated here, and have them decide whether the law was broken.

As I understand it, they were also typically fought for as a protection against tyranny and arbitrary rule. If a king disregarded trial-by-jury, it was a sign that he was moving dangerously toward absolutism.
posted by clawsoon at 12:53 PM on August 9 [4 favorites]


Being in the constitution doesn't make it right or sensible.
posted by Shutter at 12:58 PM on August 9 [3 favorites]


So Athenian democracy ran on the sortition system -- the holders of public offices were selected by lottery, rather than through election.

They didn't even have judges at their trials. Having an appointed individual with such power represents a real falling-away.

I mean, I am not actually holding up the Athenian system as the model to which we should all aspire, but you can see the principle there.
posted by praemunire at 1:44 PM on August 9 [3 favorites]


There's a mytho-poetic Athenian origin story for the first trial/decision-by-jury, rather than by-the-gods.
There's this guy Orestes. His mother murders his father. By-the-gods law says he can't knowingly let his father's murder go unavenged, or a bunch of monsters will show up and drag him to hell. So he kills his mother. Then, since by-the-gods law also says you're not allowed to murder your mother, the crew of monsters that drag you to hell for matricide show up. Orestes flees to the city of Athens, and begs protection from Athena: "Oh Goddess of Wisdom and Justice, what was I supposed to do here? I'm fucked either way." Both sets of god-law-enforcing monsters show up and start arguing with Athena, who has to admit "Well, shit, you're both right." Athena makes a deal with the monsters then turns around and announces from the sky "OK PEOPLE OF ATHENS, LISTEN UP, you're going to decide this one". After hearing both sides, the people of Athens murmur amongst themselves for a bit, then come back with "We think he did the Absolutely Forbidden Thing, but only because he had the Absolutely Required Duty to do it. Therefore, we think he should be let go." And that's the first jury trial. Or the story anyway.

That's just a story, but that sense of absolute binary rules vs public interpretation is what underlies the various aspects of letting a jury decide: local standards (that's not how we do things around here), 'reasonable actor' interpretation (yes the tree belongs to Sarah, but neighbor Beth eating the apples that fall on her side of the fence isn't stealing), and the less commonly used jury nullification (Judge we know they broke the law, but we think it's a stupid law anyway, so we vote Not Guilty).
posted by bartleby at 2:42 PM on August 9 [10 favorites]


Yes, at the moment trial by jury is a Constitutional right in the US, and to be clear this is considered to be a right of the defendant; in other words it is meant to protect the accused from even worse types of proceedings. Trial by ordeal, etc.

This doesn't make it the right approach, but I'm torn between two responses to that observation. (A) to override this right you'd need to pass a constitutional amendment, and good luck with that, especially passing one that's even more favorable to defendants, and (B) since our court system plainly lacks the capacity to try all indictments to a jury, there is going to be some de facto alternative and there's a lot of room to craft that alternative.

And as a practical matter many US jurisdictions have a lot of distinct approaches to jury trial alternatives. There's deferred dismissal conditioned on good behavior; there are community service programs; there are anger management classes; there are court supervised programs for drug and alcohol addiction. I worked in a district attorney's office for a time and I saw defendants diverted to all of these programs, and FYI the people opposing the diversion were frequently the public defenders, who either thought their clients could do better at trial or were at least interested in extracting some additional concessions from the prosecutors via the threat of making them conduct yet another expensive trial.

Another aspect that doesn't get enough attention is mandatory minimum sentences, which are total bullshit and which poison a criminal trial process that otherwise might actually work OK. If the prosecutor can threaten the defendant with a mandatory minimum of 5 years, and get them to plead to 1 year, the DA counts that as a victory and the defendant goes to jail. But if there was no mandatory minimum and 1 year was a reasonable sentence for the charged crime, the two sides would have to negotiate around the reasonable outcome, taking their respective risks into account, and come to a more reasonable agreement. The jury trial is not the problem in this scenario.

There's also the fact that the condition of our jails and prisons makes imprisonment too harsh a punishment for everyone but murderers and rapists, and is thus another sword of Damocles hanging over the defendant's head. But again, that is not the fault of jury trials.
posted by Joey Buttafoucault at 2:56 PM on August 9 [6 favorites]


"American society is too corrupt to even begin to contemplate a German-esque system. If anything, it needs even more randomness -- randomly assigned judges, random attorneys, maybe even random court recorders."

Let's skip straight to random sentencing too -- Random sentencing overall would probably be more fair the system as it is now.
posted by GoblinHoney at 3:19 PM on August 9 [2 favorites]


Being in the constitution doesn't make it right or sensible.
It doesn't necessarily make it right, but it does necessarily make it a right.

I don't know enough about the legal and the judicial processes to speculate whether or not it should be from a philosophical standpoint, so I'll leave that aside altogether.

But the way that the US is currently set up, it is a right, and thus it must be protected. Because when we start picking and choosing which of the rights enumerated by Constitution we care about, we may as well not bother with the rest of it.
posted by -1 at 3:30 PM on August 9 [3 favorites]


the key thing here is that the german system eliminates the procedural rules that slow down trials in the US (like endless fights over evidence), which are designed to benefit the defendants in the event of trial but ultimately induce the prosecution to play hardball and extract a plea bargain before trial. the germans feel okay about doing this because they think elaborate written opinions by the mixed lay/professional triers of fact will provide a paper trail that can be used on appeal to make sure no funny business happened, absent these american style procedural protections (e.g., the court decides to consider bad conduct by defendant 10 yrs ago, suggesting he is inherently a bad person regardless of the current evidence in this case).

this is a tradeoff. on one hand, it means the prosecution isnt incentivized to squeeze the defendant, BUT it also means the rules of evidence and procedure are waaay faster and looser.

I say all that to say this: if you are worried about institutional racism in the overuse of aggressive plea bargaining, imagine a chummy alabama judge/juror and his two lay jurors, all of whom are white, going through a defendant's file willy nilly and deciding "he's just a bad dude and deserves whatever he gets, evidence shmevidence. the alabama court of appeal will sort it out. wanna grab a whiskey?"
posted by wibari at 3:31 PM on August 9 [7 favorites]


I say all that to say this: if you are worried about institutional racism in the overuse of aggressive plea bargaining, imagine a chummy alabama judge/juror and his two lay jurors, all of whom are white, going through a defendant's file willy nilly and deciding "he's just a bad dude and deserves whatever he gets, evidence shmevidence. the alabama court of appeal will sort it out. wanna grab a whiskey?"


I want to add to that in terms of our legal education system as well. With a legal education averaging over $150,000, I don't think we would expect defendants from less privileged socioeconomic to receive the same sympathy as their more privileged peers.

With a full 85% of active attorneys in the US being white, and 64% male, I suspect trial by jury introduces at least some perspective that otherwise would not be present.

I am genuinely curious for those more familiar with civil law trials what safeguards there are to prevent this bias or what studies there have been on the presence or absence of biased verdicts/sentencing and how that might compare to the US.
posted by thegears at 3:42 PM on August 9 [2 favorites]


I guess that’s because we have way fewer trials that go to a jury. I don’t have enough experience to know if that’s for better or worse!

In England, cases where the most severe penalty available is one year in prison are tried by a panel of three lay magistrates advised by a legally trained clerk. Jury trials in Crown Courts are only for serious cases.

You do get a discount on your sentence for an early guilty plea but it's only a third off. Enough to motivate people to do it but not, I think, enough to convince people who are genuinely innocent to plead guilty very often.
posted by atrazine at 4:08 PM on August 9 [2 favorites]


So in urban areas, you get not only 12 random people, but 12 people who are selected to care as little as possible about what happened - so of course you get results of "I guess the cops know what they're doing."

When considering the history and relevance of trials by jury, do keep in mind that the concept - even limited strictly to the US - predates the existence of cops by a long time.
posted by kafziel at 5:35 PM on August 9 [3 favorites]


I don't think the concept of trial by jury predates the existence of state-funded, state-armed enforcers of the law. I'll grant that the term "cop" is fairly new.
posted by ErisLordFreedom at 5:48 PM on August 9


I don't think the concept of trial by jury predates the existence of state-funded, state-armed enforcers of the law.

I had a snarky comment about knights here, but honestly knights would get the same treatment in jury trials that cops do now.
posted by Merus at 6:57 PM on August 9


I don't think the concept of trial by jury predates the existence of state-funded, state-armed enforcers of the law. I'll grant that the term "cop" is fairly new.

In the sense of a volunteer watch empowered solely to keep peace, no. In the sense of a publicly-funded body that exists as a preventative rather than reactive presence inserted into the community, that serves to investigate and present evidence in a court? 1830s, out of a framework taken from slave patrols.
posted by kafziel at 7:13 PM on August 9 [5 favorites]


> Let's skip straight to random sentencing too -- Random sentencing overall would probably be more fair the system as it is now.
Like all the men of Babylon, I have been proconsul; like all, a slave. I have also known omnipotence, opprobrium, imprisonment. Look: the index finger on my right hand is missing. Look: through the rip in my cape you can see a vermilion tattoo on my stomach. It is the second symbol, Beth. This letter, on nights when the moon is full, gives me power over men whose mark is Gimmel, but it subordinates me to the men of Aleph, who on moonless nights owe obedience to those marked with Gimmel. In the half light of dawn, in a cellar, I have cut the jugular vein of sacred bulls before a black stone. During a lunar year I have been declared invisible. I shouted and they did not answer me; I stole bread and they did not behead me. I have known what the Greeks do not know, incertitude.
posted by Reclusive Novelist Thomas Pynchon at 7:17 PM on August 9 [2 favorites]


I don't think the concept of trial by jury predates the existence of state-funded, state-armed enforcers of the law. I'll grant that the term "cop" is fairly new.

In terms of English common law, which was the ultimate basis for most of the US' legal system, trial by jury is nearly a thousand years old. Things get a bit murky when you go too far back (e.g.) but the the Assize of Clarendon of 1166 is recognisably a jury. It was an evolving institution, but it is necessarily much older than "state-funded, state-armed enforcers of the law" because those enforcers didn't actually exist until the invention of modern policing.
posted by Joe in Australia at 8:15 PM on August 11 [1 favorite]


« Older Branding Fascism on PJs and Lunchboxes   |   The Waiting Room Newer »


You are not currently logged in. Log in or create a new account to post comments.