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At the session on July 7, 2014, I shall be speaking about the emergence, spread, and legitimation in German criminal procedure of the practice of Absprachen (literally “negotiating,” better translated in context as “confession bargaining”). In Absprachen cases, the presiding judge of the trial court negotiates a deal with defense counsel. In exchange for the defendant’s confession to the charge against him, the judge agrees to a material reduction in the punishment that would likely have been imposed if the court had found the defendant guilty after a full trial on the evidence without the confession. Confession bargaining in cases of serious crime was essentially unknown in Germany until the 1970s; today it is thought to occurin as many as half of all cases.

German confession bargaining has important parallels to American plea bargaining. Most importantly, both share a fundamental evil: A confession given in return for a reduced sanction is by its very nature unreliable. As the disparity grows between the reduced sentence that the judge offers the defendant for confession, and the sentence that is threatened for conviction if the defendant refuses to confess and is thereafter convicted, the pressure to waive defenses and accept the offered deal becomes ever more intense. Bargained confessions are coerced. In the US, there is now abundant empirical evidence that such bargains induce innocent persons to confess falsely.

Confession bargaining offends core principles of German criminal procedure, above all, the court’s responsibility to base any conviction and to set any sentence on the evidence heard orally at public trial (StPO §§ 244(2), 261). Nevertheless, in a decision rendered in 1997, the Bundesgerichtshof sustained the practice in a badly reasoned opinion. In 2009 the legislature effectively codified the illusory safeguards of the 1997 decision (StPO §257c). In 2013 the Bundesverfassungsgericht gave the 2009 statute provisional approval against constitutional challenge.

For discussion: Why has this happened, how serious is the damage to the German tradition of truth - seeking in criminal adjudication, and what is the future of criminal trial?
John H. Langbein


Bio
John H. Langbein, Sterling Professor of Law and Legal History at Yale University Law School, teaches and writes in the fields of Anglo-American and European legal history, modern comparative law, succession and trust law, and pension and employee benefit law. Professor Langbein has written extensively about the history of civil and criminal procedure, and about the contrasts between modern American and Continental procedure. His book, The Origins of Adversary Criminal Trial (2003), received the Coif Biennial Book Award (2006) as the outstanding American book on law. In 2000 the American Society for Legal History awarded him the Sutherland Prize for his “pioneering work” in legal history. In 2009 he published History of the Common Law: The Development of Anglo-American Legal Institutions (with R. Lerner & B. Smith), a textbook on the history of the Anglo-American legal systems. Other books include Comparative Criminal Procedure: Germany (1977); Torture and the Law of Proof (1977, rev. 2006); and Prosecuting Crime in the Renaissance: England, Germany, France (1974). He also coauthors a course book on pension and benefit law – Pension and Employee Benefit Law (with D. Pratt & S. Stabile, 5th ed. 2010). Professor Langbein has served as a Commissioner of the US Uniform Law Commission since 1984, drafting legislation that governs the law of succession and trusts in all American states. Before moving to Yale in 1989, Langbein was the Max Pam Professor of American and Foreign Law at the University of Chicago. In the 1997-98 academic year he served as the Goodhart Professor of Legal Science at Cambridge University. He has also held academic appointments at Stanford University, Oxford University, and the Max Planck Institutes in Frankfurt and Freiberg, Germany. He is a Fellow of the American Academy of Arts and Sciences and a Fellow of the British Academy.  Education: A.B. 1964 Columbia (econ); LL.B. 1968 Harvard; Ph.D. Cambridge, 1971.

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