Comparing systems–same result?

Shawn Boyne, Pre-Trial Procedures in Criminal Cases.

Prof. Boyne (Indiana U., Robert H. McKinney Sch. of Law), has an interesting read.

Does this seem familiar?

In the past two decades, scholars have not only questioned whether the “contest”between the parties is a fair one, but also debated whether prosecutors possess a “conviction mentality” that undermines their duty to pursue justice.

Do we not have politicians and media fostering this attitude of conviction first facts later? Are prosecutors like the Queen in Lewis Carroll’s Alice in Wonderland.

I’m of the view that aggressive pretrial work–through motions practice, for example, is a must for military defense counsel to perhaps short-circuit the case or prepare better ground if there is to be a trial.

In this article, I compare pre-trial procedures in Germany and the United States and specifically 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 varied organizational incentives. These shifts have created area 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 fact 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.

Even though the percentage of cases that are resolved through trial has dwindled, an adversarial outlook may shape the parties’ behavior during the pre-trial process. Indeed,neither a prosecutor’s refusal to disclose exculpatory evidence nor a defense counsel’s search for “dirt” to damage witnesses is likely to bring the investigation closer to the “truth.” In both cases, the rules that exist to curb the parties’ out-of-bounds behavior sometimes fails to guarantee that the process will serve the ends of justice. Despite the fact that defense counsel has a right to access whatever exculpatory evidence that the prosecution team has in its possession, prosecutors’ failure to disclose exculpatory evidence has been a significant factor in many wrongful conviction cases. As Peter Joy states:
Some of the other factors leading to wrongful convictions, such as mistaken identification, are more prevalent, but suppression of exculpatory evidence is especially troubling because it serves to derail the truth-seeking process of the criminal justice system. Rather than the adversarial process working as intended,the suppression of exculpatory evidence either leads some innocent defendants to plead guilty or denies the fact finders the ability to reach just verdicts in cases that go to trial.
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