1. Comparative Law Spring 2002 Professor Susanna Fischer CLASS 28 GERMAN CRIMINAL PROCEDURE II March 25, 2002

2. Wrap-up: German Criminal Procedure 1 The German criminal justice system differs from the U.S. system in a number of significant ways 1. Although the states are responsible for the administration of criminal justice, the German system is more unified. Unlike the U.S., there is one German criminal code and one code of criminal procedure 2. The German constitution does not permit the death penalty and sentences are generally lower. 3. Rates of violent crime are considerably lower in Germany than in the U.S. (1 per 100,000 in G, 5 per 100,000 in U.S.) 4. Prosecutors in Germany are not elected officials but are civil servants.

3. Wrap-up: German Criminal Procedure 1 In both the U.S. and Germany, the police first investigate crimes, send cases to the prosecutor, who decides whether to charge. If so, cases are then taken to court. German trials start with an investigation conducted by the court, independent of the police and prosecution. There is no jury in Germany (though there are lay judges) Unlike the U.S., witness examination is conducted largely by a German judge, not by the parties. There is a lower level of prosecutorial discretion in Germany than in the U.S. due to principle of legality.

4. Police Investigation How much suspicion is required for police to investigate a crime in the U.S.? To arrest a suspect? Do you need a warrant to arrest?

5. Police Investigation/Arrest : US How much suspicion is required for police to investigate a crime in the U.S.? None To arrest a suspect? Probable cause – same for grand jury indictment or charge though in reality it may often be higher. Quantum of proof differs considerably from district attorney to district attorney. In Germany there is also some variation on charging standards between different prosecutors but it is less than in the U.S. Warrant? Most arrests without warrants

6. Police Investigation/Arrest : Germany How much suspicion is required for police to investigate a crime in Germany? To arrest a suspect? Vorläufige Festname Is an arrest warrant required? How much suspicion required to charge? Are Germans arrested more or less often than Americans?

7. Police Investigation/Arrest : Germany How much suspicion is required for police to investigate a crime in Germany? Suspicion. Police take first step and must hand over to prosecution without delay To charge? Not just probable cause but suspicion – that suspect likely to be found guilty at trial. If this is not met, case will be abandoned. To arrest a suspect? Urgent suspicion and flight risk – Normally a warrant is required unless catch someone red-handed or flight danger or a problem identifying the suspect Are Germans arrested more or less often than Americans? Much less often

8. Interrogation and Right to Counsel During the first police questioning of a suspect, he or she must be informed of his or her right to counsel. Suspect has a right to choose counsel; if fails to choose counsel, defense counsel will be appointed by the court if accused is charged with a crime punishable with imprisonment of 1 year or more, or circumstances are complicated, or the accused is unable to defend himself or herself.

9. Interrogation and Right to Counsel Police can question suspect and carry out body or house searches, or take blood samples or fingerprints However, some means of interogation, such as torture, fatigue, deception, use of medicines etc. are prohibited.

10. Detention in Germany What is required for longer term detention Untersuchungshaft – in Germany?

11. Detention in Germany What is required for longer term detention Untersuchungshaft – in Germany? 1. High level of proof (urgent suspicion) 2. Flight risk 3. Usually a court order Haftbefehl unless a need for immediate action or detention less than 1 day Length of detention must be proportionate to the offense. Must be reviewed by a court after 3 months and 6 months (latter by Oberlandesgericht or Bundesgerichtshof)

12. Comparing Time Before Charging U.S. and Germany In U.S. prosecutors usually file charges within a few days of arrest by police In Germany, prosecutors usually wait for police to complete their investigation Note – percent of cases where charges are filed appears to be similar in U.S. and in Germany

13. Grand Juries/Prosecutorial Review What does a grand jury do in the U.S.? Does Germany have grand juries or anything similar?

14. Grand Juries/Prosecutorial Review What does a grand jury do in the U.S.? It reviews prosecutorial charges before trial Does Germany have grand juries or anything similar? Germany has no grand juries, but before a charge can be tried, the judge has to approve the trial of the defendant. Judge just looks at the case file – there is no hearing – and 99% of the time commits for trial.

15. What Happens Next?

16. Court sets a hearing date and summons accused, defense counsel, witnesses and experts to appeal Trial takes place Trial ends with a verdict and sentencing

17. What is a German trial like? It is called the Hauptverfahren

18. What is a German trial (Hauptverfahren) like? The court conducts investigation, not the parties It is obliged to determine the truth of the matter There is one trial which must not be interrupted for more than 10 days Prosecutor has a minor role at trial

19. German trial Charges are read by state attorney Accused can then make a statement He has the right to remain silent Confessions of guilt are common But even if accused admits guilt, the court must continue the trial so that it is convinced to the guilt Court then examines accused and witnesses, experts and other information as it thinks necessary. Personal circumstances of accused and prior convictions can be raised