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Comparing injustices: truth, justice, and the system.

C. Limits of the Pursuit for Truth: Procedural Justice

This section clarifies and outlines the extent to which the German and American systems support procedural justice even if it means that "the truth" doesn't make it into court. Both systems regulate what kind of evidence can be collected and what bars it from being admissible. The systems do it for different purposes: deterrence of law enforcement being a main reason in the United States, while the protection of "objective values" is seen as a guiding concept in Germany. These differences will be explained first before a few procedural rules from each system are contrasted. Using examples from both criminal procedures the second part will (continue to) argue that procedural justice is often unrelated to the inquisitorial or adversarial backdrop it exists in. In some instances an inquisitorial system like Germany's can be more protective of a suspect's right against self-incrimination than the American adversarial system.

1. Differences and Similarities of General Ideas of Criminal Procedure

Regulations that control how evidence is collected and what kind of evidence is admissible in court is an area that can exemplify a system's approach to truth and justice. Procedural rules including, for instance, Miranda warnings, attorney-client privilege, or the exclusionary rule make establishing the factual basis of a case harder. But, as was established earlier, procedural law and justice follow different imperatives than substantive law and justice. In most criminal justice systems, the promise of a fair trial and the protection of due process rights can be seen as the consequence of the monopoly of the state to investigate and punish crimes. Neither any European nor the American system tries to find the truth "at all costs." (164) It is therefore not in line with the law when it is argued that the "Anglo-American law has an 'adversarial' tradition that favors the values of 'due process' and exclusion, while continental law has an 'inquisitorial' tradition that favors 'crime control' and inclusion." (165) Furthermore, the American system of exclusionary rules has been criticized as being too restrictive, technical, and truth defeating (166) and that "the objective of reaching a true and just result in any particular case" is subordinated by those "truth-defeating changes" in criminal procedure. (167)

Procedural rules have their own purposes; they need to strike a balance between the goal of finding the facts of a case and protecting a suspect's rights. Foreign systems actually apply a number of limits to pretrial investigation and also employ broad exclusionary rules--that is, they also have concepts of procedural justice. In contemporary comparative discussions there exists the broadly established myth that the continental criminal system lacks "evidentiary barriers that restrict the information the judge can consider in determining guilt." (168) Former Chief Justice Burger claimed that the exclusionary rule is "unique to American jurisprudence." (169) It is maintained that inquisitorial systems "have no equivalent of the Federal Rules of Evidence, since fixed evidentiary rules might lead to the exclusion of important probative evidence." (170) It is also believed that "the paradigmatic inquisitorial system reflects a singular focus on the ascertainment of truth that effectively subordinates the protection of individual rights." (171) The German criminal system in particular has been cited as one in which exclusionary rules do not exist. (172) Even German authors assert that although "[exclusionary rules can be found in every legal system, ... they are more prevalent in systems adhering to the adversarial approach." (173) All of these claims are difficult to support. Since the beginning of the twentieth century it has been established that a defendant in Germany is not the "object" of an investigation rather than a subject whose dignity (and other rights) need to be protected. (174) Criminal procedure in Europe and Germany in particular establishes a broad array of exclusionary rules that often surpasses in scope their American equivalents. (175) They have even existed "[l]ong before the innovations of the Warren Court." (176) The rule of law and principles of proportionality are part of the core of any civilized system of criminal justice. In all systems, exclusionary rules reflect the fundamental standard that relevant evidence be excluded if constitutional rights are violated. (177)

In Germany, any criminal inquiry is limited by the constitution, especially Article 20 III GG: "The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice." (178) As was explained earlier, discovering the factual truth of a case is also mandated by the constitution, which requires the guilt of a defendant to be based on facts. Therefore both the objective to find the truth and the limits of the search for it are of constitutional importance. (179) Like the executive branch in general, actors in the criminal justice system are bound by statutory law and law in general. Constitutional rights of a suspect or any person can only be limited if an official act is proportionate and shows a balance between the purpose of the act and rights of the person. Human dignity is one fundamental right but there are many more such as the right of privacy, the protection of one's home, or the presumption of innocence. (180) Substantive justice demands the search for the whole truth but procedural justice then limits it. (181) The purpose of the exclusionary rule, at least the way it is discussed, is the protection of individual, fundamental, constitutionally protected rights. The German Constitution establishes an objective system of values (Objektive Wertordnung) that limits official power. (182) These values are indisputable and cannot be infringed upon even if a suspect agrees. (183) Every procedural step, every warrant, arrest, search, interrogation, has to be justified in the light of the constitutional value system. For most of these standard situations the legislature established rules under which individual rights can be curbed. In other instances the courts have to decide whether or not an investigative procedure violated constitutional values. As will be shown below, there are sections of the procedural code that specifically address police conduct but, interestingly from a comparative point of view, "deterrence" is not a pronounced objective of the exclusionary rule. The constitutional discourse is much less pragmatic and more value-oriented than in the United States.

In the Unites States, the exclusionary rule has its focal point on the Fourth and Fifth Amendments, which "throw great light on each other." (184) The Supreme Court was initially hesitant to exclude evidence even if it was illegally obtained. In Adams u. New York, the Court observed that:
   The question was not made in the attempt to resist an
   unlawful seizure of the private papers of the plaintiff in
   error, but arose upon objection to the introduction of
   testimony clearly competent as tending to establish the guilt
   of the accused of the offense charged. In such cases the
   weight of authority as well as reason limits the inquiry to the
   competency of the proffered testimony, and the courts do not
   stop to inquire as to the means by which the evidence was
   obtained. (185)

Later, the Supreme Court acknowledged the exclusionary rule and explained (in Weeks v. United States (186)) that the Fourth Amendment addresses courts and law enforcement alike:
   The tendency of those who execute the criminal laws of the
   country to obtain conviction by means of unlawful seizures
   and enforced confessions, the latter often obtained after
   subjecting accused persons to unwarranted practices
   destructive of rights secured by the Federal Constitution,
   should find no sanction in the judgments of the courts, which
   are charged at all times with the support of the Constitution,
   and to which people of all conditions have a right to appeal
   for the maintenance of such fundamental rights. (187)

Excluding evidence was seen as an "effective way of deterring unreasonable searches" (188) and "an essential part of the right to privacy" protected by the Fourth Amendment. (189) Exclusion was viewed as essential to safeguarding "the privacy and security of individuals against arbitrary invasions by government officials" (190) and by that, the protection of rights is considered an integral part of the exclusionary rule. In later decisions, however, deterrence of law enforcement was considered the "prime purpose" of the exclusionary rule, "if not the sole one," while at the same time its actual deterrent effect was questioned. (191) "[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates" (192) because "removing the incentive to disregard [the Constitution]" is "the only effectively available way" to compel respect for it. (193) That means that the values and individual rights established in the Constitution are enforced through the exclusionary rule. However, by stressing the deterrence rationale (as opposed to values and individual rights) the Court curbed the exclusionary rule. (194) The exclusionary rule should "be applicable only where its deterrence benefits outweigh its 'substantial social costs.'" (195) This argument opened the door to exceptions to the exclusionary rule, because if deterrence of law enforcement is the main goal, then, for example, evidence need not be excluded if a police officer acted in "good faith" while relying on a warrant that was later found to be invalid, (196) if the evidence is sufficiently attenuated from police misconduct, (197) or if an officer seizes evidence relying on a statute that was later considered violative of the Fourth Amendment. (198)

2. Lying on the Stand: Differences in the Treatment of the Suspect and Evidence

The following section will exemplify some of the similarities and differences in the treatment of the suspect and evidence that can be found in American and German procedural law. The purpose of this part is not so much to prove that one system has stronger or better protections--it is to show the degree to which the search for truth is limited in systems that have a different layout.

The suspect has traditionally been seen as the most important witness of a crime, and therefore an important source of information. But the days of the Spanish Inquisition are long gone, and, contrary to the belief that inquisitorial systems leave the suspects and witnesses unprotected for the sake of establishing the truth, they actually enjoy broad protections when it comes to interrogations and the criminal investigation in general.

According to sections 136 I, 163a III StPO, "[s]uspects have an unqualified right to remain silent, and must be informed of this right, as well as of the charges against them at the very beginning of each [prosecutorial or police] interrogation." (199) If an interrogator fails to inform the suspect of his or her right, the testimony will be excluded from trial unless the suspect was aware of the right. (200) This is comparable to the situation in the United States. A difference exists as to when the suspect has to be informed or warned. In the United States, Miranda warnings are triggered once a suspect is in custody and interrogated. (201) In Germany, a suspect has to be read his rights as soon as law enforcement has a "sufficient factual indication" for a "triable crime." (202) The suspect does not have to be in custody. (203) For example, in a stop and frisk scenario or a situation where a person is informally questioned, this person becomes a suspect as soon as law enforcement believes that this person might be involved in a crime.

During an interrogation, law enforcement is limited with regards to their interrogation techniques. According to section 136a StPO, suspects must not be physically and psychologically mistreated and interrogations have to stop when suspects are fatigued. (204) Trick questions are allowed but deceit is not. (205) For example, the standard "your buddy incriminated you, and you can only make it better by collaborating" (when the buddy actually didn't) is prohibited, and any confession or testimony made thereafter would be inadmissible. (206) Offering a reward (plea bargain), however, is allowed. (207) These rights extend to questioning by undercover agents as well. (208)

While it is often claimed that in inquisitorial systems defendants are expected to participate in the investigation or to testify during trial, they are under fewer obligations than in the United States. (209) While "[s]uspects can be summoned and, if necessary, forcibly brought before prosecutors and magistrates for interrogation," (210) they only have to provide their personal information (name, date of birth, employment, address, etc.) and need to allow fingerprinting and photographs. (211) They are not, however, compelled to testify in court. (212) Because under the law suspects cannot commit perjury, they can even lie if this supports their defense--as long as the lie does not qualify as a crime like insult or false incrimination. (213) If a suspect chooses to remain silent this silence cannot be held against him. (214) Witnesses are held to a slightly higher standard of compliance. They must answer questions from prosecutors and judges, but they can refuse to answer questions that would incriminate themselves or close relatives (215) such as siblings, parents, spouses, fiances, or domestic partners even if the marriage or domestic partnership has ended. (216) "Witnesses must be informed of this right ... [as soon as the] danger of self-incrimination becomes apparent." (217) Spousal privileges in the United States are usually smaller in scope. (218) Defendants in the United States have a right to not incriminate themselves but if they speak, they have to do so truthfully and would commit perjury if they lied. (219)

When it comes to the exclusion of evidence, the German approach is in some aspects comparable, in others different, from the situation in the United States. In general, German law prohibits the use of evidence for two reasons: first, evidence that is acquired in an unlawful way has to be excluded, and, second, some evidence is deemed so private that without the consent of the individual, courts cannot use it. (220)

The exclusion of evidence can be a reaction to a violation of procedural and constitutional law. While in the United States the exclusionary rule is mainly discussed as a deterrent for law enforcement, German jurisprudence, though not always clear, stresses "the 'purity' of the judicial process and the protection of the individual [constitutional] rights violated" as the main reasons. (221) Except for one case, the procedural code itself does not mandate the exclusion of evidence. "Section 136a(3) of the Code of Criminal Procedure declares that statements are inadmissible, even with the declarant's consent, when they were obtained through the use of coercion, force, deceit, undue threats or promises, or after the declarant was administered narcotic or mind-altering drugs." (222) In any other case, a violation of the law that regulates discovery can lead to the exclusion of evidence. Yet, just like in the United States, not every violation automatically makes evidence inadmissible. Courts balance the seriousness of the offense, the seriousness of the violation, and the importance of the evidence for the case in order to decide whether evidence should be excluded. (223) In this regard, ideas of "standing," "attenuation," or "inevitable discovery" play a role just as much as they do in other systems. (224) Particular differences between systems are more noticeable when it comes to the protection of rights that don't fall into the area of controlling police conduct. In Germany, this second set of exclusionary rules has its basis in the constitutional protection of privacy. (225) Privacy, as interpreted by courts, is a broad and constantly changing concept. A privately spoken word (including soliloquy), for example, is considered privileged information. (226) The basis of the privilege against self-incrimination can be seen as stemming from the constitutionally protected dignity of the person, although neither the German Constitution nor the Code of Criminal Procedure actually stipulates that right explicitly. (227) Even if evidence was obtained legally (in accordance with, for example, wire-tapping laws) it might still be inadmissible under the privacy doctrine. Because of the broad spectrum of what can be private, German courts distinguish three spheres of privacy, and only the core, nucleus, or inner sphere of privacy must remain untouched. In that core sphere, the right to privacy is absolute:
   The dignity of the person is inviolable and prevails against
   all the respect and protection of governmental power....
   Even the predominating interests of the general public
   cannot justify an intrusion in the absolutely protected
   nucleus ... of private life. (228)

Protections in the other spheres of privacy are less inflexible. For example, in a murder case where the suspect reflects on his crime and his motivation in his diary, these entries would be considered within the core sphere and could not be used in court even if the diary was seized legally. However, if there were entries that would address the sequence of events in a descriptive manner, the diary would at least be partly admissible because the information would be considered part of the mere "private sphere," an area that is removed from the core and can be intruded upon as long as there is an overriding public interest in the evidence. (229) In the United States, that diary would probably be admissible regardless of its content. The third tier is the so-called "social or business sphere"--what is said publicly and within the context of public transaction can be used in a court of law. Especially today, where many people share information online with various degrees of visibility and accessibility, it is difficult to establish which sphere is touched and if information can be used. Section 100c StPO, the law that regulates wiretapping, provides guidelines as to when an intrusion into the private sphere of an individual is legitimate, but it also states that any intrusion (e.g., recording) has to stop immediately if it becomes clear that the core of the right to privacy is touched. (230) "Fruits" from such evidence must not be used. (231) Although a "fruit of the poisonous tree" doctrine is not generally applied in German criminal law.

In conclusion, neither one of the two criminal justice systems seeks the truth at all costs. Both procedural traditions distinguish between the importance of reconstructing historical events and the investigative practices necessary to reveal those events and facts. The latter aspect has almost the same relevance in both systems. Defendants enjoy rights that protect them from becoming mere objects of an investigation. Contrary to a common belief, German suspects are not expected to contribute to an investigation. They have the right to remain silent throughout the investigatory phase and can even lie in court. This again shows that even within an inquisitorial system, the rights afforded to a suspect can be stronger than the inquisitorial objective to find the truth. They might even go beyond what is afforded to suspects in an adversarial system. The same is true for the way evidence is collected and the question of whether or not it can be introduced in court. While in the United States, deterrence appears to be the main reason for excluding evidence, the German system is more centered on a value and individual rights approach. Both have, of course, a lot in common. Behind the deterrence rationale in the U.S. are the rights protected under the Constitution. And, a German police officer might be thinking less about "values" in an investigation than about the likelihood that evidence will be thrown out.

D. Appellate and Postconviction Review

The systematic function of the protections discussed in the previous section is to make sure that only legitimate evidence is heard by a jury or used by a judge. But what happens after the trial? How, if at all, is truth protected after the verdict? This is what the following part will address--in a simplified way. The following analysis takes a holistic view, assuming that appeal proceedings are an integral part of a criminal justice system as a whole and that "what happens at one stage of procedure ... is shaped by what has already occurred ..., and also by expectations of what will occur later." (232) It will be argued that the appellate process in Germany protects truth much more strongly than the American process, where questions of factual truth are hardly reviewable by themselves. Truth in Germany and many other European countries is a component of the whole system and reaches beyond the trial.

For most criminal justice systems, appellate or post-conviction review generally safeguards against erroneous conviction and, therefore, safeguards against individual and systematic injustice. Courts, scholars, and practitioners alike agree that "[a]ppellate review has now become an integral part of the ... system for ... adjudicating the guilt or innocence of a defendant." (233) To which degree, however, "guilt or innocence" refers to legal or factual guilt needs further clarification. It would be too optimistic to say that the American "appellate process is an essential part of the justice system's apparatus for finding the truth." (234) In common law systems "appeals are generally oriented toward revealing mistakes of law" (235) and have little or no interest in remedying factual innocence. (236) It is not the appellate courts' role to scrutinize the factual determinations of juries or trial judges. (237) This appears to be in line with the adversarial (trial) setup of the American system that once the forum for resolving the dispute (the trial) closes, once the adversaries had their say, no further investigation, no further argument as to the actual truth or innocence of a defendant must be made. In his dissent in In re Davis, (238) Justice Scalia explained:
   This Court has never held that the Constitution forbids the
   execution of a convicted defendant who has had a full and
   fair trial but is later able to convince a habeas court that he
   is "actually" innocent. Quite to the contrary, we have
   repeatedly left that question unresolved, while expressing
   considerable doubt that any claim based on alleged "actual
   innocence" is constitutionally cognizable. (239)

Compared with the United States, the appeal's process in Germany is more open to factual question and by that strengthens the tie between truth and justice. In most cases (cases that result in a sentence of up to four years), an appeal as to questions of fact and law exists. (240)

In the United States, appellate review is a fairly recent development. (241) Not until the beginning of the twentieth century did Congress and states establish the right to appeal a criminal conviction. (242) But even then, appeals were limited to specific crimes (mainly capital ones) and did not allow for a review of factual issues. (243) This is noteworthy because the United States appeared to have been influenced by other common law countries like the United Kingdom and Canada who had passed appeal laws as a reaction to factually wrongful convictions. (244) For example, the Criminal Appeal Act (1907) in the United Kingdom established broad appellate review: "appeals were available to all persons convicted on indictment, information or inquisition; review of one's conviction was permitted as of right on questions of law and with leave on questions of fact and mixed questions of law and fact." (245) In Canada a comparable legal situation existed. (246) In the United States, "in 1889 and 1891, Congress granted defendants convicted in a range of cases a right of direct appeal to the United States Supreme Court." (247) But there is no constitutional right to appeal factual or legal errors. (248) Nor did the idea of a factual review out of equity reasons (as was the case in the United Kingdom (249)) transpire into the American system. As tangled as the history of appeals in the United States is, Rossman notes that courts in the late nineteenth century could not think of a factually wrongful conviction that is not accompanied by errors of law, meaning that errors of fact would result in errors of law so that a review of errors of law would reveal those errors of fact:
   Nor is there any danger that innocence will suffer for
   want of a writ of error. Criminal proceedings have thrown
   around the innocent so many guards, that the writ of error is
   almost useless.... If there be the least irregularity in the
   proceedings, the court must either grant a new trial, or
   recommend the party to a pardon. It may be said, with
   truth, that probably an instance cannot be found on record,
   of an innocent man suffering, for want of a writ of error in a
   criminal case. (250)

Today every state and the federal government provide some means of appellate review for defendants in criminal cases, though a right to appeal is not constitutionally protected. (251) In general, appellate review consists of three stages: "direct appeal, state postconviction proceedings, and federal habeas corpus." (252) A case originating in a state court will first go through the state's judicial system. (253) The defendant can raise many claims including the evidence admitted at trial and state law and federal constitutional claims. (254) Once the last appeal is denied (potentially by the United States Supreme Court), a case becomes "final" and can only be challenged with, first, state postconviction proceedings and, second, federal habeas corpus. (255) State postconviction proceedings are handled again by the state courts (the trial court up to the state supreme court). (256) If unsuccessful, a petitioner can turn to federal courts and file a federal habeas corpus petition, which again can run through the whole court system including the Supreme Court. (257)

The guilt or innocence determination in state criminal trials is considered "a decisive and portentous event" (258) which is why it is generally not possible for litigants to introduce new evidence of innocence during the direct appeal process. (259) Appellate courts "limit their review to the evidence" that was introduced in the original trial and represented in the record. (260) Trial courts establish "legal guilt" because "[t]he purpose of the trial stage from the State's point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt." (261) What is true for federal habeas courts is true for appellate courts in general: they "sit to ensure that individuals are not imprisoned in violation of the Constitution--not to correct errors of fact." (262) The Supreme Court has been hesitant to allow a claim of actual (i.e., factual) innocence to play any role after a conviction. As in the case of Herrera v. Collins, where a new trial--ten years after the defendant's conviction--could be justified only if a constitutional violation existed, but not because of new facts alone. (263) "Truth" itself is not a substantive value, at least not one that is equal to other procedural protections. (264) That explains why the Supreme Court can take a pragmatic approach on innocence and argue that new trials would not produce a more reliable determination of guilt or innocence, since "the passage of time only diminishes the reliability of criminal adjudications" and "[t]o conclude otherwise would all but paralyze our system for enforcement of the criminal law." (265) Moreover, the adversarial structure of the justice process requires defense counsel to create an evidentiary record in the trial. With no official interest in the truth,
   [i]t is common for state appeals courts to dispose of claims
   for lack of preservation or failure to make an adequate
   record. There are a number of different issues at stake--failure
   to object or make a legal argument, failure to ensure
   sufficient memorialization of what transpired at trial, and
   failure to make an adequate "offer of proof' or request an
   evidentiary hearing. (266)

This shows that the adversarial layout of the American trial reaches beyond the trial verdict in the sense that it limits the scope of what can be looked at on appeal. Only under exceptional circumstances can errors of fact reach the magnitude of a violation of the Constitution. In Thompson vs. City of Louisville, (267) the Supreme Court held "that a conviction based upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm." (268) That means that (only) a completely arbitrary deprivation of liberty amounts to a violation of the Due Process Clause. When it comes to scrutinizing the decision of the fact finder, the Supreme Court is deferential:269 according to Jackson, an appellate court can only acquit on the basis of insufficient evidence if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (270) This standard is hard to meet, and in practice courts generally "uphold convictions unless there is essentially no evidence supporting an element of the crime." (271)

With habeas corpus petitions the situation is comparably difficult. Take for example the case of Jeffrey Deskovic, who was wrongfully convicted for the rape and murder of a high-school classmate. (272) DNA found in the victim exonerated him but his coerced confession created a narrative momentum that would keep Deskovic in prison for 16 years. (273) Deskovic and his lawyer filed an appeal, which was denied because it reached the court four days late. (274) Deskovic appealed this decision but the "judge[s] on the panel, ruled that the lawyer's mistake did not 'rise to the level of an extraordinary circumstance' that would compel them to forgive the delay." (275) Procedure, for Deskovic, was elevated over innocence--which he tried to prove through his appeal. In 1996, the Antiterrorism and Effective Death Penalty Act allowed habeas corpus petitions only within one year after a conviction became final. (276) The likelihood of being successful with a habeas corpus claim is slim: according to a report by Vanderbilt University Law School and the National Center for State Courts from 2007, only 7 out of 2384 habeas corpus petitions by state prisoners in noncapital cases were granted from 2003 to 2004; only 33 out of 267 habeas corpus petitions in capital cases were granted from 2000 to 2001. (277)

In continental Europe, appeals emerged much earlier than in England and can be considered "a persistent feature of continental criminal procedure." (278) They are now a fundamental right across Europe. (279) Early on, appeals encompassed not only a legal but also a factual review of the case in question. (280) Marshall argues that appellate review was a method associated with the growth of royal power and a way for European governments to exert power over lower courts. (281) This alone, however, cannot explain why a factual review has become a common feature among European appeals systems. The adoption of Roman-canon procedure that included ideas of the impartial inquisition might also have been an element that influenced the development of an appellate system inclusive of facts. (282) By allowing factual review, procedural justice was shaped differently than in the United States. Through this, they were instrumental in achieving procedural justice.

Germany has had appellate review since the fifteenth century. The modern appellate system is unified across the country. There is only one (federal) Code of Criminal Law (Strafgesetzbuch, StGB) and one (federal) Code of Criminal Procedure (Strafprozessordnung, StPO). Both have to be followed by all courts in all states. Criminal cases enter the criminal justice system either on the municipal/local level (Amtsgericht) or the circuit level (Landgericht). If a prosecutor determines that, if found guilty, a defendant would face a sentence of up to four years, the municipal court (consisting of one judge or a panel of one judge and two lay judges) has jurisdiction. If the prosecutor expects the sentence to be beyond four years, charges have to be filed at the circuit level (so called Grosse Strafkammer, generally consisting of three professional judges and two lay judges). In Germany, the majority of all cases will enter at the municipal level. Only 20 percent see a Strafkammer. A defendant who loses his case on the municipal level has two options to appeal the decision: first, he or she could appeal to a higher court and demand a new trial (283) (called Berufung, conducted by that higher court) or, if the defendant does not want to contest the factual basis but rather, the application of law (procedural or substantive), he could appeal to the state supreme court. A decision of this court is final. An appeal as to facts takes the form of a new trial that follows the same lines as the initial trial. The appellate court reviews the former judgment as correct or incorrect, but also hears old evidence again and also can hear newly found evidence. If this appeal is unsuccessful, a defendant who appealed as to facts (and law) in the municipal court can (in a second appeal) question the application of the law and ask the state supreme court for review. That means that for most (but not the most serious) criminal cases, two appeals are available. A case that enters the system on the circuit level can only be appealed once and only for legal mistakes (this is called Revision (284)) to the next higher (and highest) level, which is Germany's Federal Court of Justice. (285) This court consists of five professional judges. At this point it might suffice to remark that "legal" review includes questions of how the judges conducted their investigation into the facts of the case but also the application of substantive criminal law. If the appeal is successful, the appellate court will basically reverse the judgment and order a new trial; (286) if not, the decision becomes final. What errors are appealable? A Revision can only be "based upon" a violation of the law. (287) Such a violation exists when a law was not or not properly applied. "Law" in this sense can be any law, including customary law, international law, or even foreign law as long as the proper application of that law would have had an influence on the decision. There is an overwhelming amount of literature on the question under which circumstances a decision is "based upon" an error. For some cases section 338 StPO enumerates a list of errors that automatically lead to a new trial. Among them are errors that relate to the jurisdiction of the court and other formal (but important) administrative aspects of the process.

Where truth and, in the German understanding, justice are protected the most in appellate proceedings is through the claim by one of the parties that the trial court did not determine the material truth properly. (288) A violation of this principal duty (section 244 II StPO) is a valid reason for an appeal. The so called Aufklarungsruge is one of the most commonly used appeals and is seen as an indicator for the importance of the true determination of the facts of a case. (289) In practice, however, such an appeal is more often than not unsuccessful. (290) That is because the formal requirements for such an appeal are difficult to meet. Furthermore, according to the appellate court, the trial court simply did investigate the case sufficiently enough. But the Aufklarungsruge has to be seen in relation to the whole process and especially the attorney's rights during the trial to make oral requests of proof, meaning that an attorney can ask the court to hear a specific witness or consider a specific piece of evidence. Within the inquisitorial setup, this is a powerful right: "The right to request the taking of additional evidence (which need not be presented but only identified by the requesting party) has become one of the most efficient tools of an active defense." (291) The court can refuse such a request but only for fairly limited reasons. (292) This is why it has been argued that with more possibilities for attorneys and prosecutors to influence the fact-finding process during the trial, the importance of the Aufklarungsruge has been diminished. (293) Yet, the right to appeal a violation of a trial court's duty to establish the truth is still considered a powerful way to admonish judges to explore the facts of a case thoroughly and truthfully. (294)

If the appeal fails, defendants still have two possible avenues left: a constitutional complaint and reopening of the proceedings if, for instance, new evidence is found. There is no deadline for the latter motion. Even after a decision by the highest appellate instance has become final, defendants can file a "constitutional complaint (Verfassungsbeschwerde)" and claim that this decision violates their constitutional rights--for example due process, equality before the law (Art. 3 GG), personal freedom (Art. 2 II GG), freedom of expression (Art. 5 I GG), the right to assembly (Art. 8 GG), and a general right to "unfold one's personality" (Art. 2 I GG). (295) These complaints are maybe the closest to habeas corpus but they are rarely used and rarely successful. If, even after years of incarceration, new evidence is discovered, the case can be reopened through an "extraordinary appeal" (296) to the defendant's benefit. (297) In Germany, this appeal is thought to mediate the conflict between "legal certainty and justice." (298) But, it is not unique to Germany since comparable procedural instruments exist in many European countries (299) in order to set aside final verdicts, which are inconsistent with "basic concepts of truth, justice, and legal proof." (300) New facts can include actual, newly found evidence but also, for example, expert testimony if it contains new facts or if it is of a higher quality than what was introduced in trial. Even an expert's conclusion can be "new" if it was misunderstood or not contextualized properly. The same is true for a witness's statement. (301) Like all justice systems, German criminal procedure has to balance aspects of finality and truth. (302) Although it is commonly acknowledged that the conviction of an innocent would be an "unbearable violation of justice," (303) the bar for reopening a case is rather high: in their motions for a new trial based on new facts, petitioners have to establish that the new facts must alone or in connection with evidence previously adduced lead to an acquittal or a less severe penalty because a different law should have been applied. The court then has to establish that "the contentions set out in the motion are established," (304) and that a re-trial will materially improve the position of the convicted person. In practice, however, courts are often reluctant to recognize new facts as grounds for a new trial, and show some of the same deference to trial courts as we can see in the United States in appeal proceedings. (305) Attorneys and scholars alike think of the reopening procedure as being an important yet very complex instrument (306) and call for a practice of that instrument that is in line with its intended purpose.

Under specific and narrowly defined circumstances, a case can be reopened even if the defendant was acquitted (reopening in malam partem). In Germany, for instance, section 362 StPO allows for a reopening (and a bypass of the otherwise strong prohibition against double jeopardy) if an acquittal was based on a forged document or perjured witness. (307) A few countries go even further and make a reopening possible if new evidence is found, which by itself or in combination with existing evidence suggests that the defendant has actually committed the crime he was charged with or an even more serious crime. (308) In Germany, a proposed law that would allow a reopening in malam partem in serious cases if new "scientific" evidence was discovered could not reach a majority, although the proposal argued that, for instance, DNA evidence would put a different accent on the tension between finality and material justice (i.e., factual truth). (309) The Bundesrat, initiator of that law, stressed the principle of factual truth when it supported its draft with the notion that it would be unbearable to maintain the finality of an acquitting verdict in the light of material truth and justice. (310) In the end, the proposed law could not prevail, and the constitutionally rooted principle of ne bis in idem (basically the double jeopardy clause, Art. 103 III GG) was considered to be stronger. Whether or not such a debate is thinkable in the United States is speculative. However, for Germany, it might underline the strong trust in the value of material truth.

In summary, the German criminal justice system provides many avenues for judicial review of questions of fact. Less serious cases can be appealed twice: the first appeal being basically a new trial and the second more comparable to appeals in the United States. More serious crimes can be appealed only once--for questions of law to the Federal Court of Justice. All cases can be reopened at any time if (among other possibilities) new facts are found. The function of that law is to be able to set aside final verdicts that are inconsistent with basic concepts of truth, justice, and legal proof.


What may be true in theory, sometimes doesn't apply in practice. In recent years, the German criminal justice system has faced significant criticism with regard to its claimed effectiveness in filtering out the innocent and only convicting the guilty. (311) Besides the case of Rudolf Rupp mentioned at the beginning, there was, for instance, Horst Arnold, a teacher who was accused of and convicted for a rape he never committed. (312) The alleged victim claimed that Arnold raped her, and this accusation alone was the basis for his conviction. (313) Arnold served his full sentence of five years in prison before he was able to prove his innocence. (314) False accusations in sexual assault cases that lack physical evidence appear to be a typical issue of the German justice system. (315) Other cases show familiar causes of wrongful convictions, such as the use of unreliable scientific evidence, (316) unprofessional and sloppy police work, (317) and false confessions. (318) One common cause of wrongful convictions in the United States--mistaken eyewitness identification--do not appear to be a major contributor to wrongful convictions in Germany. (319) Also, so far, not a single exoneration has been based on DNA evidence. There is too little data from which to draw conclusions, and even the known cases deserve more scrutiny than is possible here. What appears to stand out, however, is that in many cases personal or institutional tunnel vision played a role. The Rupp case is an example.

How was it possible that with confessions from intellectually-challenged suspects as the only evidence, a panel of judges would convict? The idea of a neutral investigation by the "most objective institution in the world" (320) into the facts alone seems remote and weak when courts and prosecutors cling to their stories and decisions even in the light of compelling new evidence. This case, which has stirred an intensive debate and is procedurally multifaceted, deserves much more scrutiny than this article can devote, but two aspects that might have a bearing on the whole system shall be addressed: First, tunnel vision was possibly the main contributing factor in the wrongful convictions of the defendants. Second, inquisitorialness and reviewability strongly promote factual truth but intrinsic mechanisms (often a lack of resources) suffocate their ability to prevent wrongful convictions.

As in many wrongful conviction cases in the United States, things started to go wrong early on in the investigation. The actual investigation didn't start until two years after Rudi Rupp had gone missing. During that time Rupp's daughters (then fourteen and fifteen years of age) wrote journal entries in which they stated how much they missed their father and that they were waiting for him to come back, and their mother even hired a psychic to help them find her husband. (321) But there was little to no official interest in finding Rudolf Rupp. Then rumors began to spread. A neighbor speculated that the whole family might have fed Rudolf to the dogs. (322) A different neighbor guessed Rupp might have been buried in a dung heap. (323) Those new rumors made the police think again, so they continued their investigation into the case. They got a warrant to search the house and in due course the family was brought in for "informal" questioning.

The police had prepared thirty pages of highly suggestive questions: "didn't R.R. come home that night after all? Was there a fight? Did he maybe fall? Did you maybe get scared and didn't know what to do?" One of the daughters stated that her father hadn't come home that night and the officer--knowing that his statement would be false--replied, "your father came home," whereupon the daughter answered, "and what happened then?" All suspects had IQs between fifty and seventy and had no prior experience with law enforcement. (324) Throughout the interrogation, all suspects made incriminating but contradictory statements regarding the sequence of the alleged events. There were no recordings of the interrogations--as they are not mandatory according to German law.

In order to clarify what happened, police reenacted the crime at the home of the suspects and brought the suspects to help explain. Original footage of that reenactment was used in a documentary directed by Der Spiegel. (325) In that video, it can be seen that one officer in particular interrupts the suspects often when he or she doesn't seem to "get it right." The officer also appears to comfort one of the suspects by hugging her. At one crucial point in the reenactment, the video is paused, and after the pause the officer continues by stating, "short addition: after a short conversation with Manuela (one of the daughters) in which it was explained to her that the events couldn't have happened the way she had explained, she agrees to, again, show what happened." She also states that her "mother hit the victim once" (something she had denied earlier). Another example of the suggestive interrogation style is the point at which the officer asked the fiance of one of the daughters why he "cooked" the head of the victim. (326) The officer volunteers, "because it makes smashing it easier." (327) The suspect nods, and the officer continues by asking, "you thought of that before?" The suspect nods again. (328)

In the end, all four suspects confessed to a brutal crime of which the only proof of its existence are the confessions, since no trace of blood, bones, DNA, and so forth, could be found in the house or anywhere else. These confessions were recanted a week later, mainly on the grounds that the suspects were coerced. More interrogations followed but the suspects then kept silent. At many points in the video, the officers appear to be well meaning, and the atmosphere of the reenactment does not show signs of threat or force. Later, the presiding trial judge described the atmosphere as being "joyful." This, to him, was a "strong indication that the confessions [were] reliable and voluntary."

As in many cases of false confessions, confessions, even if recanted, develop a momentum of their own. In the Rupp case they are a result of police and prosecutorial tunnel vision as it has been described often in the literature. As much as justice systems mandate an impartial investigation, tunnel vision is hard to regulate because it "is a natural human tendency that has particularly pernicious effects in the criminal justice system." (329) Moreover, "[p]roperly understood, tunnel vision is more often the product of the human condition as well as institutional and cultural pressures, than of maliciousness or indifference." (330) Once investigators think they have their suspect, the direction of their inquiry changes "from a fact-gathering 'interview' to a confession-seeking 'interrogation.'" (331) The Rupp case is a prime example of tunnel vision.

"Rumors" that start spreading years after somebody disappears are not a strong indicator for a crime. They fall into the same category of soft triggers that in so many miscarriages of justice caught the attention of law enforcement. (332) Police started looking into a family that had little to no education, slightly outside of the community, and with low socio-economic status. They fit a specific type. (333) Just as in other cases, no evidence linked the suspects to the crime--which is striking in light of the gruesomeness of the alleged crime. Police and the prosecution had focused on the suspects without looking (as would have been mandated by law) in other possible directions. Once the suspects--under pressure, as they later claim--confessed to the events, even in a very contradictory way, legal reality was created. As was explained earlier, since European systems do not recognize a "plea", a confession is just one piece of evidence that needs to be contextualized by the prosecutor and the court. However, the prosecutor and the court in their respective discretion can use a confession as a basis for an indictment or conviction even if a confession was recanted. Tunnel vision as a psychological phenomenon can easily be perpetuated in a written verdict and on other levels of the justice system where belief perseverance or belief persistence play a strong role (see below). According to Regina Rick, the court in its verdict simply omitted the journal entries from the daughters, and in an interview, the prosecutor assumed they could have been fabricated by the suspects (at a time when they were not suspects). It is within the discretion of a prosecutor or court to assume that much foresight in suspects that lack fundamental reasoning skills. Not mentioning these elements in the decision makes it at least possible that the court looked at the case with a narrow focus.

The case could only be appealed to the Federal Court of Justice (Bundesgerichtshof), the highest federal court. That court does not review questions of fact and denied the appeal on legal grounds. (334) Among other aspects, the appellant claimed that the court did not fully investigate the facts (section 244 II StPO) of the case but supported that claim solely by referring to the arguments made by an attorney of one of the codefendants. The Federal Court did not find the claim sufficiently supported by simply referring to arguments a different attorney made--a formal argument.

Years later, when Rudolf Rupp's body was found, forensic evidence from the body of the victim clearly conflicted with the version of the events that were part of the confessions. According to the confessions, the defendants smashed the head of the victim first with a club then with a hammer. There was no indication of any physical abuse whatsoever--the head being fully intact. (335) Prosecutors, however, only admitted that the story about the dogs was untrue, disregarding contradictions to the now available evidence and maintained their belief that a homicide was the cause of the death. The motion to reopen the case filed by the defendants was denied basically on these grounds. This does not seem to be in line with the state's charge to look at a case from an impartial perspective. Reopening proceedings safeguards factual truth especially in cases where a Berufung (appeal as to facts) is not possible because the case is tried before a Regional Court. This again is an example of systematic tunnel vision: "While biases thus affect the acquisition and interpretation of information, and thereby impede rational or logical adjustment of hypotheses or conclusions to reflect new information, natural tendencies also make people resistant to change even in the face of new evidence that wholly undermines their initial hypotheses." (336) The defendants appealed the decision, and it was the Oberlandesgericht Munich (highest state court) that made clear that the statements as to how the victim died are "essential facts that build the foundation of the conviction. They are, contrary to the findings of the Regional Court, not irrelevant." (337) The case had to be retried, and in that retrial all defendants were (although all of them were out of prison at that time) acquitted. Prosecutors and judges maintained their conviction that the defendants are guilty but stated they weren't able to prove it. In the aftermath of the case, some of the involved judges and prosecutors defended their decisions. Others, like the presiding judge of the court that convicted the wife of Rupp and the fiance of one daughter, Georg Sitka, admitted that humans with all their weaknesses are at work and that humans can err. Especially in cases with circumstantial evidence, tunnel vision can be a leading cause of wrongful convictions. (338)

One case alone is not sufficient to draw conclusions on the inquisitorial system as a whole. It has been argued that they are more vulnerable to systematic tunnel vision (339) but a general assessment is difficult since inquisitorial systems differ in how they distribute power between the judiciary, defense and prosecution. For Germany, four problematic areas are usually addressed in the literature: despite all of its benefits, the dossier can trigger cognitive biases because it presents to the judge a specific representation of the events, which he or she will seek to confirm during the trial. "Dissonant" facts will be ignored and the version represented in the dossier "perseveres." (340) The indictment (341) can have a likewise prejudicial effect because judges consider prosecutors their peers and (subconsciously) show solidarity with their assessment of a case. (342) Also problematic is the Zwischenverfahren (interlocutory proceeding), the procedural step that follows the indictment: the same judges who decide whether there is probable cause (hinreichender Tatverdacht) to open a trial, then actually conduct the trial. (343) Criticism also focuses on the possibility of covering up mistakes that were made in the investigative stage. (344) At the same time, however, as has been argued, the German inquisitorial system efficiently protects the truth in many other ways.

Lastly, all criminal justice systems have to deal with the human limits of the criminal process. Klaus Tolksdorf, former President of the Federal Court of Justice, phrases it this way:
   Suppose the witness for the prosecution made a credible
   incriminating statement. There was no indication in the
   files nor the course of the trial that raised doubt as to her
   telling the truth. The verdict is materially wrong if it doesn't
   correspond with the truth. At the same time the judge is
   blameless. The defendant had to be convicted. It's a
   different situation when the court disregarded cognizable
   discrepancies in the testimony of the witness or if it didn't
   hear a witness for the defense or an expert on the credibility
   of a witness. (345)

Especially in cases with circumstantial evidence or where it is one person's word against another's the burden is on the court. And courts might give more weight to the statement of a victim (346) but maybe not out of malice, maybe out of mere honest conviction. Findley argues that "[o]nly an advocate charged with responsibility for zealously pursuing the defendant's perspective ... can overcome ... [cognitive biases] and push for alternative understandings of the facts that might reveal the truth." (347) In the light of the actual power structures within the adversarial system this trust into the adversarial idea might in the end be a cultural phenomenon, one that is more deeply rooted in what a society believes makes for an acceptable procedure than in what lawyers and scientists think is an effective way to establish truth. Yet, the same can be said about the trust inquisitorial systems put into the integrity of their institutions:
   While there are differences in different inquisitorial
   jurisdictions, they all share the need to trust the integrity of
   the representatives of state institutions and, logically, a
   great and almost unquestioning faith that the legal
   guarantees of the system at each stage in the process will
   prevent the state, in whatever guise, from going off the rails.
   Without such faith, the very basis of the system would be
   called into question. Paradoxically, this is precisely one of
   the strengths of inquisitorial justice: one can feel secure in
   the hands of a prosecutor, expert, or judge, from a legal
   culture where integrity and non-partisanship are expected
   and continually reinforced by training and experience. That
   may be preferable to being forced to place one's fate in the
   hands of a lawyer who may or may not do a good job,
   depending, among other things, on how much he is paid. (348)

The comparative debate needs to acknowledge systematic differences but also has to see procedure within the particular cultural context.


This article started out with the thesis that justice and truth are inseparable and that a (or any) goal of a criminal justice system (like finding and valuing truth) can only be as strong as it is supported by the system as a whole and that the German system at least on the system level employs more procedural safeguards than the American to make sure that these goals are met. Both systems see factual truth as an important feature and the trial as "the paramount event for determining the guilt or innocence of the defendant." (349) While each system installs regulations that address what kinds of and how evidence passes into the trial, they differ significantly in how questions of factual truth or actual innocence are handled after the trial. The German system promotes truth throughout the whole system, including appellate and post-conviction proceedings. The American criminal justice system does less so. The true story of a case has to be developed in court and whether or not this story is actually true is more or less unreviewable. Appellate or "federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution--not to correct errors of fact." (350) German criminal procedure provides remedies beyond the trial phase in order to guarantee a conviction rests (and remains) on factually true grounds. Looking at a criminal justice system as a whole the German (and other European) system allows challenges for fact that go beyond the American system. Each system has a strong interest in establishing a factually correct basis for a conviction but this interest changes after the trial and with it the idea of justice that is intrinsic to each system. This is not to say that the German or any other European system is better at avoiding wrongful convictions. There is no empirical data to support that notion (or the opposite). The German system also fails in practice. But whether or not these failures are endemic of the system itself is questionable and needs further investigation. What could be shown, however, is that factual truth is to a much greater extent a feature of justice as it is understood in Germany or Europe. Truth, so it appears, is a matter of law and justice and makes it easier for claims of actual innocence to actually be heard. Kent Roach convincingly argued that the "end result of any reform will inevitably be shaped by the particular legal and political cultures of each jurisdiction." (351) The influence of legal cultures could only be addressed peripherally. But culture matters. It might be a question of legal culture who determines who "owns" truth and who determines when the search for it ends--the jury or the highest court in the country. Each has benefits and disadvantages but to flesh them out would go beyond the scope if this paper. What this article hopes to have shown is that the more justice is understood as a matter of truth, the more successful any future reform will be that wants to protect the innocent.

(1) Julia Juttner, Justizskandal im Fall Rudi Rupp: Polizeivideos belegen Manipulation der Aussagen, SPIEGEL ONLINE (Mar. 19, 2012, 6:07 PM), wie-die-polizei-im-fall-rudi-rupp-die-verdaechtigen-unter-druck-setzte-a-822276.html.

(2) Id.

(3) Scholars and defense attorneys were always doubtful as to the efficiency of the German system in convicting the guilty and only the guilty. Karl Peters in his seminal work Fehlerquellen im Strafprozess initiated a discussion of the pitfalls of German criminal justice, but even today with increasing criticism and many documented cases of wrongful convictions there is no "innocence revolution" and there are no innocence projects that call for reform. KARL PETERS, FEHLERQUELLEN IM STRAFPROZESS (1970).

(4) That is true for most countries, even the United States, where a large(r) body of research on this topic exists than in Europe. Chrisje Brants, Wrongful Convictions and Inquisitorial Process: The Case of the Netherlands, 80 U. CIN. L. REV. 1069, 1070 (2012).

(5) Beck Online Kommentar StPO [section] 261 Rn 63.2.

(6) Klaus Tolksdorf, former President of the Federal Court of Justice, criticizes Eschelbach's numbers for being methodologically problematic. See Stefan Geiger, Interview zu Fehlurteilen: "Kein Mensch wiirde Richter," Stuttgarter-Zeitung.De (Apr. 11, 2012, 4:05 PM), bc7a-17c455flf010.html.

(7) See Kent Roach, Wrongful Convictions: Adversarial and Inquisitorial Themes, 35 N.C. J. Int'l L. & COM. Reg. 387, 401-02 (2010). Surprisingly, there is little overlap between leading causes of wrongful convictions in the United States and Germany. Eyewitness misidentification, for example, does not play much of a role in the known wrongful convictions in Germany, but wrongful accusations by victims do.

(8) See infra Part I.

(9) It is impossible to provide even a condensed list of articles and books that contributed to or "are" the innocence movement. A book that provides an in depth analysis and also a comprehensive overview of wrongful convictions is BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS Go WRONG passim (2011).

(10) "Neo-inquisitorial" is the term used to describe Germany's system as including adversarial elements,

(11) See Christopher L. Blakesley, Law, Language, Crime, and Culture: The Value and Risks of Comparative Law, 49 CRIM. L. BULL. 438, 467-75 (2013).

(12) See Marvin Zalman, The Adversary System and Wrongful Conviction, in WRONGFUL CONVICTION: INTERNATIONAL PERSPECTIVES ON MISCARRIAGES OF JUSTICE 71, 79 (C. Ronald Huff & Martin Killias eds., 2008).

(13) Roach, supra note 7, at 391.

(14) Further examples of fundamental differences that make any generalization about either system impossible: Some legal cultures trust judges as fact-finders and adjudicators; others believe that decisions as to guilt or innocence should be made by an impartial cross-section of society. One justice system might rest on a tough-on-crime philosophy with high conviction rates; another believes in rehabilitation and has low incarceration rates. One system allows a defendant to lie on the stand, another calls it perjury. The list could go on.

(15) Myron Moskovitz, The O.J. Inquisition: An American Encounter with Continental Criminal Justice, 28 VAND. J. TRANSNAT'L L. 1121, 1145 (1995).

(16) These terms are from Tom Stacy, The Search for the Truth in Constitutional Criminal Procedure, 91 COLUM. L. Rev. 1369, 1370-73 (1991). Later, it will be argued that constitutional protections and rights cannot be seen as primarily and purposefully "subordinating" accurate adjudication to other values. See id. at 1374; infra Part II.C. Both elements have to be considered separately.

(17) For example, William Pizzi claims that "the United States is far more protective of a suspect" than other countries, where "the police are expected to talk to the suspect about the crime in an effort to get whatever information they can and ... it is not considered the function of a lawyer to stop him from being questioned." WILLIAM T. PIZZI, TRIALS WITHOUT TRUTH 52, 61-62 (1999). Many European criminal justice systems give a suspect the same rights any suspect in the United States has. In Germany, Miranda warnings have to be issued much earlier than in the United States (when law enforcement has thickened suspicion, even if the suspect is not in custody). See Richard S. Frase, The Search for the Whole Truth About American and European Criminal Justice, 3 BUFF. CRIM. L. REV. 785, 822 (2000) (reviewing PIZZI, supra). Even beyond Miranda, Frase shows that "there are many aspects of foreign criminal procedure which are more favorable to defendants than the corresponding American rule; Pizzi rarely mentions those foreign rules and practices." Id. at 786. For more on how foreign systems apply limits on police questioning see, for example, id. at 801-02.

(18) See Jorg-Martin Jehle, Was und wie haufig sind Fehlurteile? [What and How Frequent are Errors of Justice?], FORENSISCHE PSYCHIATRIE, PSYCHOLOGIE, KRIMINOLOGIE [FORENS. Psychiatr. Psychol. Kriminol.], 220, 220-29 (2013) (Ger.).

(19) In the past years, cases of wrongful convictions gained considerable media attention. But as of now there are no established "innocence projects" in Germany. See Other Projects Around the World, INNOCENCE PROJECT, (last visited Apr. 16, 2014).

(20) According to the Oxford English Dictionary, the noun "justice" refers to concepts of integrity, rectitude, or the quality of being morally just or righteous. 8 The OXFORD ENGLISH DICTIONARY 325-26 (J. A. Simpson & E. S. C. Weiner eds., 2d ed. 1989). But the term also includes the idea of truth, fairness, legal vengeance (especially capital punishment), or rendering what is one's due. Id. The term closest to justice in the German language would be Gerechtigkeit. Langenscheidts Handworterbuch Englisch Englisch-Deutsch, DEUTSCH ENGLISCH 344 (2001). For the justice system, however, the term Justizsystem is common. Gerechtigkeit has similar connotations as justice--this includes the due and fair exchange of what is one's due, which might be the strongest connotation. There are, however, differences.

(21) Frase, supra note 17, at 788-89.

(22) See Michael J. Sandel, Justice: What's the Right Thing to Do? 28-30 (2010), for an insightful survey on ideas of public justice.

(23) See generally Note, The Cultural Defense in the Criminal Law, 99 HARV. L. Rev. 1293, 1293 passim (1986) (discussing the potential conflict between legal and cultural values).

(24) Cf. Raymond Boudon & Emmanuelle Betton, Explaining the Feelings of Justice, 2 ETHICAL Theory & Moral PRAC. 365, 365-97 (1999) ("[A]xiological feelings cannot always be derived from instrumental, in other words from consequential considerations. A promising path to eliminate these difficulties is to consider axiological feelings in general and justice feelings in particular as being generally the effects of systems of reasons perceived as strong by social actors.").

(25) Robert Alexy, Law and Correctness, 51 C.L.P. 205, 205 (1998).

(26) See John Thibaut & Laurens Walker, A Theory of Procedure, 66 CALIF. L. Rev. 541, 545 (1978).

(27) Justice has to be understood in a positivist way; the measuring rod is worldly law and not the justice of philosophers. Ulfrid Neumann, Materiale und prozedurale Gerechtigkeit im Strafverfahren [Material and Procedural Justice in Criminal Proceedings], 101 ZEITSCHRIFT FUR DIE GESAMTE STRAFRECHTSWISSENSCHAFT [ZStW] 52, 52-74 (1989).

(28) Medieval Sourcebook: Corpus Iuris Civilus, 6th Century, FORDHAM UNIV., (last visited Apr. 16, 2014). This idea, however, is older than the Corpus Juris Civilis; Plato mentions it in his Republic. PLATO, Republic, in Plato: Complete Works 971, 976 (John M. Cooper ed., G.M.A. Grube & C.D.C. Reeve trans., 1997) (stating "[t]hat it is just" to render to each his due).

(29) Exodus 21:24.

(30) Ralf Dreier, Was ist Gerechtigkeit? [What is Justice?], 37 JURISTISCHE SCHULUNG [JUS] 580, 580-84 (1996) (Ger.).

(31) Gustav Radbruch, Statutory Lawlessness and Supra-Statutory Law, 26 O.J.L.S., 1, 6-7 (2006). Problems arise when the law is not in line with a common or "natural" understanding of right and wrong. See id. at 6. The debate of natural and positive law cannot be replicated here (nor is that necessary) but it needs to be acknowledged that wrongful convictions, as formally legitimate as they are, are seen as unjust because of principles that are beyond the letter but part of the "purposiveness" of the law. See id.

(32) Radbruch expresses this idea (in the context of objectionable but duly enacted statutes and just law) where positive law goes against justice as "a conflict of justice with itself, a conflict between apparent and real justice." Id.

(33) Dreier, supra note 30, at 580.

(34) Id.

(35) Id. at 581; D. D. RAPHAEL, Concepts OF Justice 56 (2001) (clarifying that Justinian-- who consolidated a dictum by Ulpian--probably referred to civil law where the idea of restitution is common but that the formula of giving every man his due can also be interpreted as "what he deserves").

(36) Russell L. Christopher, Deterring Retributivism: The Injustice of "Just" Punishment, 96 NW. U. L. REV. 843, 859 (2002).

(37) Neumann argues that, in German criminal theory, the prospective orientation of the purpose of punishment is still dominant; punishment as a means for rehabilitation, but when questions of how just a judicial decision is arises, retribution is the measuring rod. See Neumann, supra note 27, at 52.

(38) See Dreier, supra note 30, at 581; Neumann, supra note 27, at 53.

(39) This does not imply that wrongful "convictions" are only thinkable in cases where an offender receives a sentence. Gustl Mollath, a German mechanic, who was found not guilty of a crime after a successful insanity defense was sent to a closed psychiatric institution. In 2013 it could be proven that the expert report on Mollath's mental state was unreliable, and as a result of that, Mollath had to be released. Free Man: Court Releases Whistleblower from Psychiatric Ward, SPIEGEL ONLINE INT'L (Aug. 07, 2013, 1:46 PM), international/germany/court-releases-whistleblower-gust1-mollath-from-psychiatric-ward-a915240.html.

(40) See Jehle, supra note 18, at 222. In German criminal law the length or impact of any intervention is limited by a defendant's "guilt." Id. The idea of proportionate sentencing exists even in areas where treatment or education is the guiding idea; for example, in the juvenile justice system. Id.

(41) Dreier, supra note 30, at 581.

(42) Thomas Weigend, Is the Criminal Process about Truth? A German Perspective, 26 HARV. J.L. & PUB. POL'Y 157, 158 (2003) (footnote omitted).

(43) Eberhard Schmidhauser, Zur Frage Nach Dem Ziel Des Strafprozesses [On the Question of the Goal of the Criminal Process], in FESTSCHRIFT FUR EBERHARD SCHMIDT: ZUM 70. GEBURTSTAG 511, 511-12 (Paul Bockelmann & Wilhelm Gallas eds., 1961).

(44) Thomas Weigend, Should We Search for the Truth, and Who Should Do It?, 36 N.C. J. Int'l L. & Com. Reg. 389, 390-91 (2011).

(45) Edwin Meese III, Promoting Truth in the Courtroom, 40 VAND. L. Rev. 271, 272 (1987).

(46) United States v. Havens, 446 U.S. 620, 626 (1980) (citing Oregon v. Hass, 420 U.S. 714, 722 (1975)).

(47) Colorado v. Connelly, 479 U.S. 157, 166 (1986) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)); see also Crawford v. Washington, 541 U.S. 36, 74 (2004) (Rehnquist, C.J., concurring) (noting that the aim of the Confrontation Clause is to promote the truth-seeking function of criminal trials); United States v. Robinson, 485 U.S. 25, 33 (1988) ("[The] central purpose of a criminal trial is to decide factual questions of the defendant's guilt or innocence...." (alteration in original) (quoting Van Arsdall, 475 U.S. at 681)); United States v. Cronic, 466 U.S. 648, 655 (1984) (observing that the Constitution's guarantee of the effective assistance of counsel is of bedrock importance to the pursuit of truth); United States v. Nobles, 422 U.S. 225, 230 (1975) (commenting on the importance of the adversary system to the discovery of truth).

(48) When I refer to the German Code of Criminal Procedure I will use the abbreviation common in Germany: StPO (Strafprozessordnung). An English version of the code is available at

(49) ENTSCHEIDUNGEN DES BUNDESVERFASSUNGSGERICHTS [BVerfG] [Federal Constitutional Court], Mar. 19, 2013, 2 BVR 2628/10, available at entscheidungen/rs20130319_2bvr262810.html.

(50) Id. That is commonly accepted. See, e.g., Neumann, supra note 27, at 52. The same is true for the Japanese criminal justice system, where "material justice seeks the truth." Hiroyuki Nose, Fehlerquellen im japanischen Strafprozess [Sources of Error in the Japanese Criminal Process], in WAHRHEIT UND GERECHTIGKEIT IM STRAFVERFAHREN 399, 402 (Klaus Wasserburg & Wilhelm Haddenhorst eds., 1984).

(51) Gerson Trug & Hans-Jurgen Kerner, Formalisierung der Wahrheitsfindung im (reformiert-) inquisitorischen Strafverfahren? Betrachtungen unter rechtsvergleichender Perspektive [Formalization of Truth-Finding in the (Reformed) Inquisitorial Criminal Process? Considerations Under a Comparative Law Perspective], in RECHT GESTALTEN--DEM Recht dienen. Festschrift fur Reinhard Bottcher zum 70 Geburtstag. 191, 193 (2007) (Ger.).

(52) Axel Tschentscher, Prozedurale Theorien der Gerechtigkeit 67 (2000).

(53) Herrera v. Collins, 506 U.S. 390, 411 (1993).

(54) Id. at 417. Indeed, "[although common law [countries] differ in their receptiveness of fact-based appeals, appeals are generally oriented towards revealing mistakes of law." Roach, supra note 7, at 435 (footnote omitted).

(55) See STRAFPROZESSORDNUNG [StPO] [CODE OF CRIMINAL PROCEDURE], Apr. 7, 1987, BGBl. I at 1074, [section] 359(5) (Ger.), available at englisch_stpo.html.

(56) Id.

(57) See Weigend, supra note 42, at 157.

(58) See Mirjan Damaska, Truth in Adjudication, 49 HASTINGS L.J. 289, 294 (1998). The South African Truth and Reconciliation Commission distinguishes in its report between four notions of truth--all of them relevant in most criminal proceedings: factual or forensic truth, personal or narrative truth, social or "dialogue" truth, and healing and restorative truth. 1 The S. African Truth and Reconciliation Comm'n, Truth and Reconciliation Commission of South Africa Report 110 (1998), available at

(59) Damaska, supra note 58, at 294; Heike Jung, Uber die Wahrheit und ihre institutionellen Garanten [About the Truth and Its Institutional Guarantors], 64 JURISTENZEITUNG 1129, 1130 (2009). Courts in Germany stress the limitations of human insights. There is no absolute knowledge that could fully eliminate the possibility of the opposite, of an error. FRAUKE STAMP, Die WAHRHEIT IM STRAFVERFAHREN 52-53 (1998).

(60) See Carlo Ginzburg, Checking the Evidence: The Judge and the Historian, 18 CRITICAL Inquiry 79, 84-85 (1991). Ginzburg concludes "that the tasks of both the historian and the judge imply the ability to demonstrate, according to specific rules, that x did y, where x can designate the main actor ... and y designates any sort of action." Id.

(61) Damaska, supra note 58, at 294.

(62) See Neumann, supra note 27, at 53.

(63) Id. at 56.

(64) This is true for the United States. In Germany, a defendant can be tried again after an acquittal if specific requirements are met (new evidence not among them).

(65) Roach, supra note 7, at 435.

(66) Including the exclusionary rule, which Pizzi claims does not exist in Germany. Pizzi, supra note 17, at 37.

(67) See Frase, supra note 17, at 815.

(68) Stamp, supra note 59, at 250, 285.

(69) Rules of evidence in the United States and, for instance, regulations in the German procedural code about what kind of evidence must or should be used in order to prove guilt effectively are guidelines that make sure only reliable evidence is considered. They have only little relation to procedural justice as it is discussed here. See Neumann, supra note 27, at 60.

(70) Roach, supra note 7, at 388.

(71) Id. at 389.

(72) Zalman, supra note 12, at 71-72, 75.

(73) Michael Bock et al., Die erneute Wiederaufnahme des Strafverfahrens [The Repeated Reopening of Criminal Proceedings], 6 GOLTDAMMER'S ARCHIV FUR STRAFRECHT 328, 328 (2013) (Ger.).

(74) See Roach, supra note 7, at 392. As an example, Roach mentions the willingness to accept a guilty plea from an innocent defendant as an intrinsic limitation of the adversarial system. Id.

(75) See Weigend, supra note 44, at 395.

(76) See Anthony J. Lisska, Aquinas's Theory of Natural Law: An Analytical Reconstruction 93 (1996).

(77) See Weigend, supra note 44, at 395.

(78) Marian David, The Correspondence Theory of Truth, STAN. ENCYCLOPEDIA PHILOSOPHY (July 2, 2009),

(79) Damaska, supra note 58, at 294.

(80) Id.

(81) It would be a misconception to assume that there are no "adversaries" in inquisitorial systems. German criminal procedure considers the defense a vital organ of the justice system. See Richard S. Frase & Thomas Weigend, German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 B.C. INT'L & COMP. L. REV. 317, 342-44 (1995). Criminal defense attorneys are equipped with an array of rights and privileges that are comparable to the ones American attorneys enjoy. See id. at 342. What is different is the process of how facts and the factual basis of a case are established. See Thomas Weigend, Germany, in CRIMINAL PROCEDURE: A WORLDWIDE STUDY 187, 206-07 (Craig M. Bradley ed., 1999).

(82) See Frase, supra note 17, at 815. Jung (with further references) argues that the difference between adversarial and inquisitorial fact-finding is merely methodological. Jung, supra note 59, at 1130. Both systems, as a goal, want to find the factual elements that are important for a conviction, and, according to Weigend, "a judgment that does not even claim to [be rooted] ... in 'true facts' will not be accepted as a just resolution of conflict and instead will appear as an arbitrary judicial fiat." Weigend, supra note 44, at 392.

(83) See Weigend, supra note 42, at 168-69. The goal or purpose of the inquiry must not be confused with the goal or purpose of the criminal process itself. Id. at 168. Criminal justice is not only about establishing the true facts. Id. Factual truth is part of the goals of criminal justice but is not an end in itself. Id. It is a means to resolve a conflict. Id. Weigend argues that if truth-finding were the ultimate goal of the criminal process, it "would have to result in a statement of facts found to be true (and not in a judgment), and the process would have to be structured much more like a historian's research into events of the past." Id. at 169. But, as a matter of fact, at least the inquisitorial model makes "collecting and processing information from all possible sources," the main objective not only of the early stages of discovery but also the trial and, therefore, the inquisitorial model is a thorough inquiry into events of the past. See id. The desire to learn the truth is a necessary condition of the (German) inquisitorial system. See Trug & Kerner, supra note 51, at 193.

(84) See Sean Doran et al., Rethinking Adversariness in Nonjury Criminal Trials, 23 Am. J. GRIM. L. 1, 22 (1995); Lloyd L. Weinreb, The Adversary Process Is Not an End in Itself, 2 J. Inst, for Study Legal Ethics 59, 59 (1999).

(85) John Henry Merryman & Rogelio Perez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America 127-29 (3d ed. 2007); Brants, supra note 4, at 1073.

(86) Brants, supra note 4, at 1073; see Frase, supra note 17, at 787.

(87) Sometimes, the two systems are referred to as "inquisitorial" and "accusatorial." Merryman & Perez-Perdomo, supra note 85, at 127. As inquisitorial systems also have accusatorial elements, this distinction seems less characteristic than the first. See id. at 127-29.

(88) See John H. Langbein, Comparative Criminal Procedure: Germany 1 (1977); Mirjan Damaska, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 U. PA. L. REV. 506, 512-54 (1973); Frase & Weigend, supra note 81, at 318; Raneta Lawson Mack, It's Broke So Let's Fix It: Using a Quasi-Inquisitorial Approach to Limit the Impact of Bias in the American Criminal Justice System, 7 IND. INT'L & COMP. L. REV. 63, 71-85 (1996); Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67 NOTRE DAME L. REV. 403, 409-87 (1992).

(89) Gary Goodpaster, On the Theory of American Adversary Criminal Trial, 78. J. CRIM. L. & Criminology 118,118 (1987).

(90) Stephan Landsman, A Brief Survey of the Development of the Adversary System, 44 Ohio St. L.J. 713, 714 (1983).

(91) Goodpaster, supra note 89, at 120.

(92) Landsman, supra note 90, at 716.

(93) See id. at 715.

(94) United States v. Cronic, 466 U.S. 648, 655 (1984) (internal quotation marks omitted). The belief in the truth finding capabilities of the adversarial trial is still widespread. E.g., Monroe H. Freedman, Our Constitutionalized Adversary System, 1 CHAP. L. REV. 57, 78 (1998) ("Our constitutional adversary system is based ... on the premise that the adversary system is more effective [than the inquisitorial] in the search for truth.").

(95) The term "inquisitorial" has been connoted with medieval practices to find the truth by torturing a suspect until he or she confessed to a crime. See THE AMERICAN HERITAGE Dictionary of the English Language 905 (4th ed. 2000). Although torture has been condemned as a way of obtaining a confession in all civilized countries, many scholars consider the suspect a central element for finding facts in the inquisitorial system. See, e.g., Mack, supra note 88, at 70-71. That is a misconception since in many European countries the suspect has even more or broader rights than the one to remain silent. In Germany, for example, the defendant won't be sanctioned even if he lied on the stand. See Albert W. Alschuler, Implementing the Criminal Defendant's Right to Trial: Alternatives to the Plea Bargaining System, 50 U. CHI. L. Rev. 931, 987 n.270 (1983).

(96) MERRYMAN & PEREZ-PERDOMO, supra note 85, at 135.

(97) In Germany, according to section 160 StPO "[t]he public prosecution office shall ascertain not only incriminating but also exonerating circumstances."

In France, the Examining Magistrate (juge d'instruction) has to carry out "any investigative step he deems useful for the discovery of the truth." CODE OF PROCEDURE PENALE [C. PR. PEN.J art. 81 (Fr.); see also LUTZ MEYER-GOSSNER, STRAFPROZESSORDNUNG: GERICHTSVERFASSUNGSGESETZ, NEBENGESETZE, UND ERGANZENDE BESTIMMUNGEN 617 (2001) (Ger.) ("principle of substantial truth-seeking").

(98) See Jung, supra note 59, at 1129-35 (acknowledging, however, that the adversarial process tries to find the historical truth as well and that correspondence can be achieved by developing coherent stories).

(99) Most inquisitorially oriented systems also include adversarial elements. See STAMP, supra note 59, at 19 (providing a more nuanced analysis, but concluding that it is characteristic of the German criminal process that the agencies (police, prosecutor, judge etc.) "instruct themselves" meaning that that they autonomously and independently look for a comprehensive picture of the facts).

(100) Section 136a of the German Code of Criminal Procedure states that, during an interrogation, for example, the suspect's freedom must "not be impaired by ill-treatment, induced fatigue, physical interference, administration of drugs, torment, deception or hypnosis." STRAFPROZESSORDNUNG [StPO] [CODE OF CRIMINAL PROCEDURE], Apr. 7, 1987, BGBL. I at 1074, [section] 136a (Ger.), available at englisch_stpo.html.

(101) Peter Arenella, Rethinking the Functions of Criminal Procedure: The Warren and Burger Courts' Competing Ideologies, 72 GEO. L.J. 185, 206 (1983).

(102) Id.

(103) See Weinreb, supra note 84, at 63 (noting that "magisterial" is a more precise term than "inquisitorial").

(104) Klaus Volk, The Principles of Criminal Procedure and Post-Modern Society: Contradictions and Perspectives, INT'L SOCIETY FOR REFORM CRIM. L. 7-9 (2003),

(105) See Frase & Weigend, supra note 81, at 344 ("This standard is ... similar to the 'beyond a reasonable doubt' standard'....").

(106) See, e.g., Brants, supra note 4, at 1075-78. The role of the judge in the Netherlands appears to be much weaker than in Germany. See id. at 1081-90. A German court would never simply "review" evidence that is brought before it. Cf. Keith A. Findley, Adversarial Inquisitions: Rethinking the Search for the Truth, 56 N.Y.L. SCH. L. Rev. 911, 933 (2012) ("Simply assigning investigative responsibility to a neutral magistrate does not ensure a vigorous search for the truth.").

(107) See Elisabetta Grande, Italian Criminal Justice: Borrowing and Resistance, 48 Am. J. COMP. L. 227, 232 (2000). In Italy, the prosecutor supervises the investigative phase in an inquisitorial manner, id. at 232-33, but at the trial phase, the contending parties put evidence before the court--in serious cases consisting of two professional and six lay judges. See id. at 228, 243-47.

(108) This follows Sec. 155 II StPO "[T]he courts shall be authorized and obliged to act autonomously" in their pursuit of the truth.

(109) Weigend, supra note 42, at 162. 19

(110) See Frase & Weigend, supra note 81, at 342-43. The principle of immediacy (Unmittelbarkeitsprinzip), for example, regulates the preference of oral over written proof if the "original" evidence was oral. Id. at 343. A witness's statement cannot be introduced by reading a transcript, but hearsay testimony is generally admissible subject only to the judge's duty to hear all witnesses in order to establish the truth (exceptions exist). See id.

(111) See generally Weigend, supra note 42, at 162 (describing the role of the inquisitorial judge in the German system); Michael Wells, French and American Judicial Opinions, 19 YALE J. INT'L. 81, 100 (1994) (observing that French law is not as formal as its courts' opinions might otherwise suggest).

(112) See Weigend, supra note 42, at 166-67.

(113) Trug & Kerner, supra note 51, at 192.

(114) Id. at 200.

(115) Id. at 202.

(116) Id. at 203.

(117) Goodpaster, supra note 89, at 122; see also Marvin E. Frankel, The Search for Truth: An Umpireal View, 123 U. PA. L. Rev. 1031, 1036 (1975) ("[W]e know that others searching after facts--in history, geography, medicine, whatever--do not emulate our adversary system.").

(118) Doran et at, supra note 84, at 22; see also Damaska, supra note 88, at 581-82 (observing that the primary goal of the adversarial system is to resolve disputes between parties, whereas, the inquisitorial system's central goal is to seek truth); Freedman, supra note 94, at 57 ("[A]n adversary system resolves disputes by presenting conflicting views of fact and law to an impartial and relatively passive arbiter, who decides which side wins what.").

(119) Goodpaster, supra note 89, at 125 (describing this view as concordant with the "fair decision theory".).

(120) Arenella, supra note 101, at 206 (internal quotation marks omitted); see also Frankel, supra note 116, at 1037 ("Employed by interested parties, the process often achieves truth only as a convenience, a byproduct, or an accidental approximation."); Weinreb, supra note 84, at 61 (noting that the same attributes that make the adversarial system great--for example the single-minded, zealous representation of each party--also hamper the pursuit of truth because of tactics or "tricks of persuasion" used by advocates to achieve favorable results for those they represent).

(121) Frase, supra note 17, at 809.

(122) Trug & Kerner, supra note 51, at 193, 197.

(123) Peter Haberle, Wahrheitsprobleme im Verfassungsstaat 23 (1995) (Ger.); Thomas Weigend, Rechtsvergleichende Bemerkungen zur Wahrheitssuche im Strafverfahren, in Festschrift fur Ruth Rissing-VAN SAAN, 749, 751 (Thomas Fischer, et al. eds, 2011) (Ger.).

(124) Trug & Kerner, supra note 51, at 197. This description is imprecise in that it does not differentiate between truth as the ultimate goal of an inquiry and the process that is used to achieve it. However, the statement holds true for what at the end of a trial and the criminal process in general is an acceptable truth.

(125) Goodpaster, supra note 89, at 152.

(126) See Damaska, supra note 58, at 305 & n.41. There is "an unruly mix of objectives" in the American process--a mix that "is reflected in dramatic differences between the court's concern with factfinding precision in accepting a guilty plea and in the course of trial." Id. Fact-finding precision has a different weight in plea bargaining than it does at trial. See id. at 302.

(127) Samuel R. Gross, The Risks of Death: Why Erroneous Convictions are Common in Capital Cases, 44 BUFF. L. REV. 469, 488 (1996).

(128) Understanding the Causes: False Confessions, INNOCENCE PROJECT, (last visited Sept. 27, 2014).

(129) Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defendant's Dilemma: An Innovative Empirical Study of Plea Bargaining's Innocence Problem, 103 J. CRIM. L. & Criminology l, 37 (2013).

(130) Lawrence M. Friedman, American Law: An Introduction 194 (W.W. Norton & Co. rev. ed. 1998).

(131) Trug & Kerner, supra note 51, at 205.

(132) See FRIEDMAN, supra note 130, at 196.

(133) Id. at 197.

(134) North Carolina v. Alford, 400 U.S. 25 (1970).

(135) Stephanos Bibas, Harmonizing Substantive-Criminal-Law Values and Criminal Procedure: The Case of Alford and Nolo Contendere Pleas, 88 CORNELL L. Rev. 1361, 1371-72 (2003).

(136) FED. R. CRIM. P. 11(b)(1)(B), (C), (E), (G), (H).

(137) FED. R.CRIM.P. 11(b)(2).

(138) Fed. R. Crim. P. 11(b)(3).

(139) See Fed. R. Crim. P. 11(c)(3).

(140) Trug & Kerner, supra note 51, at 207.

(141) Thomas Weigend & Jenia Iontcheva Turner, The Constitutionality of Negotiated Criminal Judgments in Germany, 15 Ger. L.J. 81, 102--03 (2014).

(142) Richard Klein, Due Process Denied: Judicial Coercion in the Plea Bargaining Process, 32 HOFSTRA L. Rev. 1349, 1351--52 (2004). Klein reports cases in which judges told defendants that an offer is "for today only," or that he would "up the sentence if you take it to trial." Id. at 1350 (internal quotation marks omitted).

(143) Ursula Odiaga, Note, The Ethics of Judicial Discretion in Plea Bargaining, 2 GEO. J. Legal Ethics 695, 695 (1989).

(144) See Joachim Herrmann, Bargaining Justice--A Bargain for German Criminal Justice?, 53 U. Pm-, L. Rev. 755, 763 (1992).

(145) See id. at 755; see also C.H. Brants-Langeraar, Consensual Criminal Procedures: Plea and Confession Bargaining and Abbreviated Procedures to Simplify Criminal Procedure, ELECTRONIC J. Comp. L., May 2007, at 12, (comparing plea bargaining practices in the United States and the Netherlands).

(146) FRIEDMAN, supra note 130, at 195. In the Netherlands a confession is a simple "statement by the defendant." Brants-Langeraar, supra note 144, at 12 (internal quotation marks omitted). Brants-Langenaar correctly calls the idea that a confession should have an influence on the trial an "anathema in the light of inquisitorial ideology." Id.

(147) German misdemeanors include crimes that would be considered felonies in the United States, such as theft, embezzlement, fraud, some drug offenses, and most environmental crimes. Even a large-scale white-collar crime might fall under fraud and by that be a misdemeanor. One of the most notorious cases showing the unexpected effects of [section] 153a StPO is the Party Finance Scandal from 2001 in which former Chancellor Helmut Kohl agreed to make a payment 300,000 DM (equivalent to roughly $200,000 today) after a 14month criminal investigation into his acceptance of and failure to declare anonymous campaign donations. Germany's Party Finance Scandal "Ends" With Kohl's Plea Bargain and Too Many Unanswered Questions, GERMAN L.J., article.php?id=60 (last visited May 15, 2014). (The preceding article incorrectly uses the term "plea bargain" for Kohl's agreement to make that payment.)

(148) Strafprozessordnung [StPO] [Code of Criminal Procedure], Apr. 7,1987, BGBL. I at 1074, [section] 153a(l)-(2) (Ger.), available at englisch_stpo.html; Herrmann, supra note 144, at 757.

(149) Shawn Marie Boyne, Translating Civil Law 'Objectivity' with an Adversarial Brain: An Ethnographic Perspective 7 (Ind. Univ. Robert H. McKinney School of Law Legal Studies research Paper No. 02, 2013). Boyne convincingly argues that German prosecutors exercise more discretion than scholars were aware of. Id. at 8-9. However, her general claim that limited discretion of German prosecutors is a myth must be repudiated. A prosecutor who dismisses a felony case would not only face disciplinary action but also criminal sanctions.

(150) For example, it is not allowed in Slovenia. Katja Sugman Stubbs, Criminal Procedure in Slovenia, in CRIMINAL PROCEDURE IN EUROPE 483, 531 (Richard Vogler & Barbara Huber eds., 2008).

(151) In France, a defendant must face a charge carrying less than five years in prison, the offered penalty must be less than half the maximum prison sentence or a fine, and there is no negotiation. Richard Vogler, Criminal Procedure in France, in CRIMINAL PROCEDURE IN EUROPE, supra note 150, at 171, 254. If the defendant accepts, a judge must "verify the reality of the facts" or "verifie la realite des faits." CODE DE PROCEDURE PENALE [C. PR. PEN.] art. 459-9 (Fr.). In Spain, a plea bargain is impermissible if the most serious charge exceeds a potential sentence of six years imprisonment. Fernando Gascon Inchausti & Maria Luisa Villamarin Lopez, Criminal Procedure in Spain, in CRIMINAL PROCEDURE IN EUROPE, supra note 150, at 541, 635.

(152) Strafprozessordnung [StPO] [Code of Criminal Procedure], Apr. 7,1987, BGBL. I at 1074, [section] 203 (Ger.), available at englisch_stpo.html.

(153) while the process itself does not look all that different than American plea bargaining, judges in the United States are not involved to the same degree in reviewing the facts as their German colleagues. Weigend & Turner, supra note 141, at 103.

(154) See Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Mar. 19, 2013, 2 BvR 2628/10 (Ger.). A brief summary in English is available on the Internet. German Court Upholds Plea Bargains, DW (last visited May 19, 2013),

(155) See Deutscher Bundestag: Gesetzentwurf der Bundesregierung [BT] 16/12310 (Ger.); 2 BvR 2628/10 (para. 67) (Ger.).

(156) 2 BvR 2628/10 (para. 54) (Ger.).

(157) Id. (para. 55).

(158) Id. (para. 105).

(159) Id. (para. 115).

(160) Id. (para. 4).

(161) TrUg & Kerner, supra note 51, at 203.

(162) See FRIEDMAN, supra note 130, at 194.

(163) TrUg & Kerner, supra note 51, at 207; Jehle, supra note 18, at 225. The statutorily embedded principle of legality, for example, demands that every act that could fulfill a criminal statute has to be pursued by the police, prosecutor, courts, and so forth. It limits the discretion of the actors to a minimum because of the distrust in adversarial decision-making.

(164) Bundesgerichtshof [BGH] [Federal Court of Justice] June 14, 1960, 14 Entscheidungen des Bundesgekichtshofes in Strafsachen [BGHSt] 358, 365 (Ger.).

(165) Kuk Cho, "Procedural Weakness" of German Criminal Justice and its Unique Exclusionary Rules Based on the Right of Personality, 15 Temp. Int'L & COMP. L.J. 1, 1 (2001) (footnote omitted).

(166) See PIZZI, supra note 17, at 71. But see Frase, supra note 17, at 794 (criticizing Pizzi's claims).

(167) Meese, supra note 45, at 273.

(168) William T. Pizzi & Luca Marafioti, The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation, 17 YALE J. INT'L L. 1, 7(1992).

(169) Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 415 (1971) (Burger, C.J., dissenting); see also LANGBEIN, supra note 88, at 69 ("The constitutional exclusionary rules are for the most part an American peculiarity. Illegally obtained evidence is generally admitted not only in Germany and other Continental legal systems, but also in England and the Commonwealth systems.").

(170) Pizzi & Marafioti, supra note 168, at 7; see also Craig M. Bradley & Joseph L. Hoffmann, People v. Simpson: Perspectives on the Implications for the Criminal Justice System: Public Perception, Justice, and the "Search for Truth" in Criminal Cases, 69 S. CAL. L. REV. 1267, 1285 (1996) ("The constitutional privilege against self-incrimination ... [is] a bastion against an inquisitorial system of criminal justice."); Doran et al., supra note 84, at 20 ("In the inquest model, however, such [evidentiary] rules only impede the inquirer in the quest for truth.").

(171) Mack, supra note 88, at 71; see also Damaska, supra note 88, at 583-84 (noting that "many procedural safeguards and technical rules" found acceptable in adversary proceedings are unacceptable in inquisitorial systems). Pizzi disregards the existence of laws comparable to Miranda warnings when he states that in continental systems "the police are expected to talk to the suspect about the crime in an effort to get whatever information they can and ... it is not considered the function of a lawyer to stop him from being questioned." PIZZI, supra note 17, at 62.

(172) See, e.g., Abraham S. Goldstein & Martin Marcus, The Myth of Judicial Supervision in Three "Inquisitorial" Systems: France, Italy, and Germany, 87 YALE L.J. 240, 261 (1977); Malcolm Richard Wilkey, The Exclusionary Rule: Why Suppress Valid Evidence?, 62 Judicature 214, 217 (1978).

(173) Weigend, supra note 42, at 168. Weigend argues that in adversarial systems, truth is a procedural concept that "comports well with ... [the] Anglo-American skepticism about man's ability to discover the 'substantive' truth.'" Id. If "truth is ... elusive," so his argument goes, then "the fairness of proceedings becomes the main foundation of [a decision]...." Id. In inquisitorial systems, "the criminal process is ... a search for substantive truth," and any exclusionary rule "run[s] counter to the goals and the spirit of the inquisitorial model; they are therefore used only as a last resort to safeguard indispensable procedural values...." Id. In Hudson v. Michigan, the Supreme Court made the same argument and stated that, "[suppression of evidence ... has always been our last resort, not our first impulse." Hudson v. Michigan, 547 U.S. 586, 591 (2006). The Court has "repeatedly emphasized that the [exclusionary] rule's 'costly toll' upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application." Id. (second alteration in original) (quoting Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 364-65 (1998)) (internal quotation mark omitted). Weigend acknowledges that the criminal process is not about factual truth alone, but this comparison shows again that distinguishing between substantive and procedural justice helps to create clearer picture of the different goals of any given justice system. Weigend, supra note 42, at 168.

(174) Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Mar. 19, 2013, 2 BvR 2628/10 (Ger.), available at entscheidungen/rs20130319_2bvr262810.html; see STAMP, supra note 59, at 90.

(175) See Craig M. Bradley, The Exclusionary Rule in Germany, 96 HARV. L. REV. 1032, 1064 (1983).

(176) Stephen C. Thaman, Chapter 17 Balancing Truth Against Human Rights: A Theory of Modern Exclusionary Rules, 20 IUS GENTIUM 403, 407 (2013).

(177) Bradley, supra note 175, at 1064.

(178) GRUNDEGESETZ FUR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], May 23, 1949, BGB1. XX (Ger.), available at http://www.gesetze-im The original reads "Die Gesetzgebung ist an die verfassungsmassige Ordnung, die vollziehende Gewalt und die Rechtsprechung sind an Gesetz und Recht gebunden." A more literal translation of "Gesetz" would be "statutory law" and of "Recht" would be "law."

(179) STAMP, supra note 59, at 91.

(180) Id. The principle of proportionality explains that, for example, an arrest for a petty crime might not be justifiable.

(181) Id. at 92.

(182) See generally Bundesverfassungsgericht (BVerfG) (Federal Constitutional Court) Jan. 16, 1957, 1 BvR 253/56 (Elfes); available at

(183) Siegfried Bross, Der Einfluss des Verfassungsrechts auf strafprozessuale Eingriffsmassnahmen [The Impact of Constitutional Law on Criminal Procedure Intervention Measures], HUMBOLDT FORUM RECHT (Jan. 1, 2009), http://www.humboldt-forum

(184) Boyd v. United States, 116 U.S. 616, 633 (1886).

(185) Adams v. New York, 192 U.S. 585, 594 (1904).

(186) Weeks v. United States, 232 U.S. 383 (1914).

(187) Id. at 392.

(188) Wolf v. Colorado, 338 U.S. 25, 31 (1949), overruled by Mapp v. Ohio, 367 U.S. 643 (1961).

(189) Mapp, 367 U.S. at 656.

(190) Camara v. Mun. Court, 387 U.S. 523, 528 (1967)

(191) United States v. Jams, 428 U.S. 433, 446 (1976) (quoting United States v. Calandra, 414 U.S. 338, 347 (1974) (citing United States v. Peltier, 422 U.S. 531, 536-539 (1975)); see Janis, 428 U.S. at 448-54.

(192) United States v. Leon, 468 U.S. 897, 916 (1984); see also Calandra, 414 U.S. at 347 ("[T]he rule's prime purpose is to deter future unlawful police conduct...."); United States v. Peltier, 422 U.S. 531, 538 (1975) (same).

(193) Elkins v. United States, 364 U.S. 206, 217 (1960).

(194) Narrowing Application of the Exclusionary Rule, ONECLE, (last updated Oct. 24, 2012).

(195) Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363 (1998) (quoting Leon, 468 U.S. at 907). "Social Costs" include the "exclusion of relevant incriminating evidence" or "the risk of releasing dangerous criminals into society." Hudson v. Michigan, 547 U.S. 586, 595 (2006).

(199) Leon, 468 U.S. at 920-21.

(197) Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).

(198) Illinois v. Krull, 480 U.S. 340, 342 (1987).

(199) Frase & Weigend, supra note 81, at 333.

(200) Id.

(201) See Miranda v. Arizona, 384 U.S. 436, 444 (1966).

(202) See Strafprozessordnung [StPO] [Code of Criminal Procedure], Apr. 7, 1987, BGBL. I at 1074, [section] 152(2) (Ger.), available at http://www.gesetze-im- (describing the principle of mandatory prosecution for triable crimes); see also Sabine Gless, Germany: Balancing Truth Against Protected Constitutional Interests, in Exclusionary Rules In Comparative Law 113, 136 (Stephen C. Thaman ed., 2013) (quoting Bundesgerichtshof [BGH] May 31, 1990, 37 Entscheidungen DES Bundesgerichtshofes In Strafsachen [BGHST] 48 (Ger.)) ("The admonitions required by [StPO [section] 136(1)] must be given 'when the suspicion already present at the beginning of the interrogation has so thickened that the suspect can seriously be considered a perpetrator of the investigated crime.'"). A crime is not "triable," for example, if a minor (person younger than fourteen years old) is the suspect. This person would not be adjudicated in the criminal justice system. See Don Cipriani, Children's Rights And The Minimum Age of Criminal Responsibility: A Global Perspective 100 tbl.5.1 (2009). as well.208

(203) Frase & Weigend, supra note 81, at 333; Frase, supra note 17, at 801.

(204) See Strafprozessordnung [StPO] [Code of Criminal Procedure], Apr. 7, 1987, BGBI. I at 1074, [section] 136a (Ger.), available at http://www.gesetze-im-; Bundesgerichtshof [BGH] [Federal Court of justice], May 15, 1992, 38 Entscheidungen Des Bundesgerichtshofes In Strafsachen [BGHST] 291 (Ger.).

(205) Gerhard Dannecker & Julian Roberts, The Law of German Criminal Procedure, in Introduction To German Law 419, 438 (Mathias Reimann & Joachim Zekoll eds., 2d ed. 2005).

(206) See Christopher Slobogin, Comparative Empiricism and Police Investigative Practices, 37 N.C. J. Int'l L. & Com. Reg. 321, 327 (2012) (noting that German law prohibits the police from affirmatively misrepresenting the evidence to a suspect).

(207) See Strafprozessordnung [StPO] [Code Of Criminal Procedure], Apr. 7, 1987, BGBL. 1 at 1074, [section] 257c (2013) (Ger.), available at http://www.gesetze-im- (outlining the circumstances under which a defendant may enter into a negotiated plea agreement with the court).

(208) See Frase, supra note 17, at 801.

(209) See Barbara A. Babcock, Fair Play: Evidence Favorable to an Accused and Effective Assistance of Counsel, 34 STAN. L. Rev. 1133, 1136-37 (1982). "A representative difference between the two models is the existence in the ... adversary system of the privilege against self-incrimination.... [S]uch a privilege would be inconceivable in a criminal process modeled on a scientific investigation." Id. at 1137. This privilege (nemo tenetur se ipsum accusare) is protected by the German Constitution and case law of the German Supreme Court. See Dannecker & Roberts, supra note 205, at 427.

(210) Frase & Weigend, supra note 81, at 333.

(211) See Strafprozessordnung [StPO] [Code of Criminal Procedure], April 7, 1987, BGBL. I at 1074, [section][section] 68(1), 81b (Ger.), available at http://www.gesetze-im-

(212) Weigend, supra note 81, at 210.

(213) See Frase & Weigend, supra note 81, at 343.

(214) See id.; Bundesgerichtshof [BGH] [Federal Court of Justice] Dec. 3, 1965, 20 Entscheidungen des Bundesgerichtshofes in Strafsachen [BGHSt] 298 (Ger.); Bundesgerichtshof [BGH] [Federal Court of Justice] Oct. 26, 1965, 20 Entscheidungen Des Bundesgerichtshofes in Strafsachen [BGHSt] 281 (Ger.).

(215) Frase & Weigend, supra note 81, at 333.

(216) See Strafprozessordnung [StPO] [Code of Criminal Procedure], April 7, 1987, BGB1. I at 1074, [section] 52(1) (Ger.), available at http://www.gesetze-im

(217) Frase & Weigend, supra note 81, at 333.

(218) See Frase, supra note 17, at 822-23.

(219) See id. at 822.

(220) Frase & Weigend, supra note 81, at 334.

(221) Id. at 336. Deterrence of police misconduct is never cited as a reason for the exclusion of evidence. See Gless, supra note 202, at 129. American law enforcement has greater discretion than German or European officers, and a German officer could also have to face administrative sanctions in a case of misconduct. See John H. Langbein & Lloyd L. Weinreb, Continental Criminal Procedure: "Myth" and Reality, 87 YALE L.J. 1549, 1560 (1978); Gregory Howard Williams, Police Discretion: A Comparative Perspective, 64 Ind. L.J. 873, 875 & n.8 (1989). It might appear as if the German system follows an approach that emphasizes individual rights whereas in the United States the exclusionary rule is regarded as a pragmatic device to control law enforcement. Yet, through the exclusionary rule courts in the United States enforce constitutional values and rights as much as German courts do.

(222) Frase & Weigend, supra note 81, at 336; see Strafprozessordnung [StPO] [Code Of Criminal Procedure], Apr. 7, 1987, BGB1. I at 1074, [section] 136a(3) (Ger.), available at

(223) Frase & Weigend, supra note 81, at 336.

(224) See id.

(225) Id. at 334.

(226) Id. at 334-35. This is why, for instance, a private individual's secret tape-recording of the defendant's words was held inadmissible in a fraud case. See Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Jan. 31, 1973, 34 Entscheidungen Des Bundesverfassungsgerichts [BVerfGE] 238 (Ger.).

(227) See Frase & Weigend, supra note 81, at 335. "It would violate a person's dignity if he were forced to actively participate in his prosecution. This prohibition covers not only verbal statements but all other ... conduct, including breathing into a breathalyzer, [participating in a polygraph exam,] or producing tangible evidence." Id.

(228) Cho, supra note 165, at 25 (quoting Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Jan. 31, 1973, 34 BVerfGE 245 (Ger.)).

(229) Id. at 25.

(230) Strafprozessordnung [StPO] [Code of Criminal Procedure], Apr. 7,1987, BGBl. I at 1074, [section] 100c(5) (Ger.), available at englisch_stpo/englisch_stpo.html.

(231) Id.

(232) Frase, supra note 17, at 789.

(233) E.g., Griffin v. Illinois, 351 U.S. 12, 18 (1956).

(234) Keith A. Findley, Wrongful Conviction Issues: Innocence Protection in the Appellate Process, 93 Marq. L. Rev. 591, 592 (2009).

(235) Roach, supra note 7, at 435; see Frase, supra note 17, at 839-40.

(236) Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 348-49.

(237) See Pizzi, supra note 17, at 222 ("[The American] appellate system does not review the most important issue of all, namely, the accuracy of the jury's verdict."); Frase, supra note 17, at 839-40; Giovanna Shay, What We Can Learn About Appeals from Mr. Tillman's Case: More Lessons From Another DNA Exoneration, 77 U. Cin. L. Rev. 1499, 1536 (2009).

(238) In re Davis, 557 U.S. 952 (2009).

(239) Id. at 955 (Scalia J., dissenting). In McQuiggin v. Perkins, the Supreme Court held, however, "that a plea of actual innocence can overcome AEDPA's one-year statute of limitations" under which a state prisoner has only one year to file a federal habeas petition, starting from "the date on which the judgment became final." McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013); 28 U.S.C. [section] 2244(d)(1)(A) (2012). The McQuiggin ruling has not resolved the issue of whether a prisoner may be entitled to habeas relief based on a freestanding actual-innocence claim.

(240) Weigend, supra note 81, at 211.

(241) See Marc M. Arkin, Rethinking the Constitutional Right to a Criminal Appeal, 39 UCLA L. Rev. 503, 521-23 (1992).

(242) Id.

(243) See Cassandra Burke Robertson, The Right to Appeal, 91 N.C. L. Rev. 1219, 1233-34 (2013).

(244) See Peter D. Marshall, A Comparative Analysis of the Right to Appeal, 22 Duke J. Comp. & Int'l L. 1, 9 (2011).

(245) Id. at 9.

(246) Id.

(247) Id. This jurisdiction was later transferred to the federal circuit courts. Id.

(248) McKane v. Durston, 153 U.S. 684, 687 (1894). In Whitmore v. Arkansas, Justice Marshall conceded "that the Constitution does not require States to provide appellate review of noncapital criminal cases." Whitmore v. Arkansas, 495 U.S. 149, 167 (1990) (Marshall, J., dissenting) (citing Ross v. Moffitt, 417 U.S. 600, 611 (1974)).

(249) Robertson, supra note 243, at 1237-38.

(250) David Rossman, "Were There No Appeal": The History of Review in American Criminal Courts, 81 J. Crim. L. & Criminology 518, 546-47 (1990) (quoting Lavett v. People, 7 Cow. 339, 339 n.a (N.Y. 1827)). Frase finds that view still current arguing that "in many appeals, the issue of law or fact are fairly close." Frase, supra note 17, at 841.

(251) See Robertson, supra note 243, at 1221-22.

(252) Garrett, supra note 9, at 194.

(253) Id.

(254) Id.

(255) Id. at 194-95.

(256) Id. at 195.

(257) Id. at 195-96.

(258) Wainwright v. Sykes, 433 U.S. 72, 90 (1977).

(259) Wisconsin is the only state that provides a mechanism for introducing new evidence of innocence, and new facts underlying claims of innocence-related error, into the direct appeal process. Appellate counsel for an innocent defendant can undertake new or additional investigation to determine if exculpatory witnesses or other evidence was overlooked at trial, and can then seek a new trial based on such newly discovered evidence.

Findley, supra note 234, at 611.

(260) Id. at 605.

(261) Ross v. Moffitt, 417 U.S. 600, 610 (1974).

(262) Herrera v. Collins, 506 U.S. 390, 400 (1993).

(263) Id. at 393, 400-05.

(264) Marshall argues that "there has been considerable convergence in how criminal appeals are conceptualized in common law and European civil law jurisdictions." Marshall, supra note 244, at 2. He mentions human rights laws as one of the reasons for that convergence. Id. When it comes to the factual correctness of a verdict, the convergence might be less obvious because a review of the factual basis (that most European systems offer) is still missing in the United States. Id. at 44-45.

(265) Herrera, 506 U.S. at 403 (citing McClesky v. Zant, 499 U.S. 467, 491 (1991); United States v. Smith, 331 U.S. 469, 476 (1947)); id. at 399.

(266) Shay, supra note 237, at 1539.

(267) Thompson v. City of Louisville, 362 U.S. 199 (1960).

(268) Jackson v. Virginia, 443 U.S. 307, 314 (1979).

(269) Findley, supra note 234, at 602.

(270) Jackson, 443 U.S. at 319 (citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)).

(271) Findley, supra note 234, at 602.

(272) Fernanda Santos, A Supreme Court Nomination Stirs Up Bad Memories, N.Y. Times, June 10, 2009, at A19.

(273) Id. For a description of the role of story-telling in wrongful conviction cases, see Ralph Grunewald, The Narrative of Innocence, or, Lost Stories, 25 Law & Literature 366, 367-68 (2013), which describes how the adversarial system of justice in the United States encourages the simplification of cases to easily recognizable narratives that can mislead juries and lead to wrongful convictions.

(274) Santos, supra note 272, at A19.

(275) Id.

(276) Nancy J. King et al., Nat'l Ctr. for State Courts, Executive Summary: Habeas Litigation in U.S. District Courts 1 (2007), pdffiles1/nij/grants/219558.pdf.

(277) Id. at 9-10. "In none of the 33 cases receiving relief did the federal court grant the writ based on a claim of factual innocence itself. Instead, the presence of an innocence claim made a grant of relief on a different claim more likely." Id. at 10.

(278) Marshall, supra note 244, at 11.

(279) Id.

(280) Id. at 40.

(281) Id. at 14-15.

(282) See id. at 13.

(283) Strafprozessordnung [StPO] [Code of Criminal Procedure], Apr. 7, 1987, BGB1.1 at 1074, [section] 312 (Ger.), available at englisch_stpo.html (available to both prosecutor and defense).

(284) Id. [section][section] 333, 337-38.

(285) The reasoning behind the limited review of the more serious crimes is that a panel of at least three professional judges will conduct the factual reconstruction of the case.

(286) prase & Weigend, supra note 81, at 348.

(287) Strafprozessordnung [StPO] [Code of Criminal Procedure], Apr. 7,1987, BGB1.1 at 1074, [section] 337 (Ger.), available at englisch_stpo.html.

(288) As stated earlier, section 244 StPO reflects the "inquisitorial principle characteristic" that the court is obligated to determine the facts of the case. Frase & Weigend, supra note 81, at 342 & n.176.

(289) Johannes Wessels, Die Aufklarungsruge im Strafprozess, Juristische Schulung, Jan. 1969, at 1, 1.

(290) See Jehle, supra note 18.

(291) Frase & Weigend, supra note 81. at 342 n.175.

(292) Id. at 342.

(293) Wessels, supra note 289, at 1.

(294) Id. at 2.

(295) prase & Weigend, supra note 81, at 349.

(296) Sascha Ziemann, Aktuelle Entwicklungen auf dem Gebiet der Wiederaufnahme in Strafsachen, in HRRS Onlinezeitschrift Fur Hochstrichterliche Rechtsprechung Im Strafrecht 401, 401 (2006) (Ger.).

(297) Strafprozessordnung [StPO] [Code of Criminal Procedure], Apr. 7,1987, BGB1.1 at 1074, [section] 359 (Ger.), available at englisch_stpo.html. Reopening of the proceedings concluded by a final judgment shall be admissible for the convicted person's benefit "if new facts or evidence were produced, which, independently or in connection with the evidence previously taken, tend to support the defendant's acquittal, or, upon application of a less severe penal norm, a lower penalty or an essentially different decision on a measure of reform and prevention." Id.

(298) Meyer-Gossner, supra note 97, at 1132.

(299) Among them: Bulgaria, Denmark, the United Kingdom, Estonia, Finland, Greece, Norway, Austria, Poland, Romania, Russia, Sweden, Slovakia, Hungary, and Germany. See Sabine Swoboda, Das Recht der Wiederaufnahme in Europa, in HRRS Onlinezeitschrift Fur Hochstrichterliche Rechtsprechung Im Strafrecht 188, 191 (Karsten Gaede eds., 2009).

(300) Barbara Huber, Criminal Procedure in Germany, in Criminal Procedure In Europe, supra note 150, at 322.

(301) Meyer-Gossner, supra note 97, at 1132.

(302) Neumann, supra note 27, at 64 (stating that the underlying reason for finality is the acceptance of the limitations of the human possibility to "know").

(303) Id. at 57.

(304) Strafprozessordnung [StPO] [Code of Criminal Procedure], Apr. 7,1987, BGB1.1 at 1074, [section] 370 (Ger.), available at englisch_stpo.html.

(305) Findley & Scott, supra note 236, at 348-49.

(306) Ziemann, supra note 296, at 402.

(307) Meyer-Gossner, supra note 97.

(308) Swoboda, supra note 299, at 191-92 (mentioning Bulgaria, Denmark, England, Estonia, Finland, Greece, Norway, Austria, Poland, Romania, Russia, Sweden, Slovakia, and Hungary as countries that allow the reopening of proceedings for and against the defendant).

(309) Bundesrat Drucksachen [BR] 655/07 (Ger.); see Klaus Marxen & Frank Tiemann, Aus Wissenschaft und Praxis: Die geplante Reform der Wiederaufnahme zuungunsten des Angeklagten, ZIS 188, 189 (2008) (Ger.).

(310) Bundesrat Drucksachen [BR] 655/07 (Ger.).

(311) See, e.g., Thomas Daenstadt, Der Richter und sein Opfer: Wenn die Justiz sich irrt (2013); Sabine Ruckert, Unrecht im Namen Des Volkes: ein Justizirrtum und seine Folgen (2008); Johann Schwenn, Fehlurteile und ihre Ursachen--die Wiederaufnahme im Verfahren wegen sexuellen Missbrauchs, 2010 strafverteidiger 705-711 (Ger.); Johann Schwenn, Merkmale eines Fehlurteils, 7 forensische psychiatrie, psychologie, Kriminologie [Forens. Psychiatr. Psychol. Kriminol.] 258, 260 (2013) (Ger.).

(312) Five Years Jail for German Woman on Fake Rape Allegations, New Age (Sept. 13, 2013, 5:27 PM), _on_fake_rape_allegations.

(313) Id.

(314) Id.

(315) See Schwenn, Merkmale eines Fehlurteils, supra note 311, at 260 (noting a "dramatic accumulation" of these kinds of cases and discussing similarities in all of the cases the author has defended).

(316) Donald Stellwag spent eight years in prison for a robbery he didn't commit. D. Schanzenbach, Donald Stellwag kampft bei "Maischberger" gegen einen Gutachter, Berliner Kurier (May 17, 2005), einen-gutachter-8-jahre-unschuldig-im- knast, 8259702,4097692.html. A surveillance video in a bank took a picture of the back of the head of the robber. Id. Stellwag's conviction was based on an expert analysis that claimed that the ear of Stellwag matched the one of the person in the photo. Id. Stellwag was convicted despite eight witnesses that testified that the defendant was 350 kilometers away from the crime scene in Nuremberg. Id. Fingerprints from the crime scene did not match the defendant either. Id. Two weeks after Stellwag's release, the real robber was arrested for other robberies--he confessed to the crime Stellwag allegedly committed. Id.

(317) Harry Wortz, who was wrongfully convicted of killing his ex-wife, was a "natural" suspect for the police. The victim was a police officer, and the investigation was led by the suspect's father in law, also a police officer. See Beate Lakotta, Ich will mein Leben zuriick, 20 Der Spiegel 58,58 (2012) (Ger.).

(318) Accused of having sexually assaulted his daughter, the defendant confessed for "tactical" reasons and was convicted to a three-year sentence. Years after his release, his daughter recanted her testimony. See Sexueller Missbrauch an Tochter: Nur ein grower Justizirrtum? Sudkurier (May 5, 2009), waldshut-tiengen/Sexueller-Missbrauch-an-Tochter-Nur-ein-grosser-Justizirrtum;art372623,3755410.

(319) Eyewitnesses suffer the same weaknesses everywhere but it would be (at least at this point) speculative to try to explain why only a few cases of eyewitness misidentifications are known. Maybe such cases haven't been exposed yet, maybe the German system has a different (more effective) method of evaluating eyewitness evidence.

(320) This is how Franz von Liszt describes the German prosecutor. Franz von Liszt, Vortrag im Berliner Anwaltsverein, in Deutsche Juristen-Zeitung [DJZ] 179, 180 (1901) (Ger.).

(321) Most facts of the case were covered in the media and are publicly available. I also interviewed Regina Rick, the defense attorney, who represented one of the defendants in the reopening proceedings. She also shared the manuscript of a conference talk she gave on that case with me ("An die Hunde verfiittert", Prozessbericht zu einem Justizirrtum, held on November 12, 2011, 28. Herbstkolloquium der Arbeitsgemeinschaft Strafrecht in Hamburg). That manuscript includes further details of the case.

(322) Juttner, supra note 1.

(323) Id.

(324) Id.

(325) Spiegel.TV, Rekonstruktion eines Justizskandals: Vier Morder und ein Todesfall?, Spiegel Online (Sept. 12, 2012),

(326) Juttner, supra note 1.

(327) Id.

(328) Id.

(329) For an in depth analysis of the phenomenon of tunnel vision, see Findley & Scott, supra note 236, at 292.

(330) Id.

(331) Id. at 293 n.11.

(332) In Chris Ochoa's case, for example, employees of a Pizza Hut restaurant found it suspicious when he and his friend "toasted" in memory of the victim, so they notified a security guard who contacted law enforcement. Grunewald, supra note 272, at 378-379. For a discussion of the dramatization of everyday events, see id. at 380.

(333) See id. at 380.

(334) Bundesgerichtshof [BGH] [Federal Court of Justice] Jan. 2006, 1 StR, 527/05 (Ger.), available at

(335) Juttner, supra note 1.

(336) Findley & Scott, supra note 236, at 314.

(337) Oberlandesgericht [OLG] Mar. 9, 2010, Munchen, Beschl. 8 (Ger.).

(338) Given the lack of official data, general statements are difficult to make. A look at which cases are covered by the media shows that there are only a few cases of mistaken ID but many in which alleged victims claim a sexual assault. Courts have convicted suspects of multiple rapes of one victim even when forensic evidence showed that the victim was still a virgin.

(339) Roach, supra note 7, at 401-02 ("[I]nquisitorial systems, which rely on the building of dossiers, may be particularly vulnerable to tunnel vision or confirmation bias because evidence that does not correspond with the investigator's judgments can be discounted and excluded in the process of constructing the dossier."). Even beyond the dossier, tunnel vision can influence how a verdict is written up so that it becomes practically hard to review. Id.

(340) Bernd Schiinemann, Der Richter im Strafverfahren als manipulierter Dritter? Zur empirischen Bestatigung von Perseveranz-und Schulterschlusseffekt, StV 2000, at 159, 161 (Ger.).

(341) A document that, among other information, includes the charges, relevant facts, and the evidence. See Strafprozessordnung [StPO] [Code of Criminal Procedure], Apr. 7, 1987, BGB1. I at 1074, [section] 200 (Ger.), available at englisch_stpo/englisch_stpo.html.

(342) Schunemann, supra note 340, at 162.

(343) Strafprozessordnung [StPO] [Code of Criminal Procedure], Apr. 7,1987, BGB1.1 at 1074, [section] 203 (Ger.), available at englisch_stpo.html.

(344) See Bock et. al., supra note 73, at 338.

(345) Geiger, supra note 6.

(346) Schwenn, Merkmale eines Fehlurteils, supra note 310.

(347) Findley, supra note 106, at 934.

(348) Brants, supra note 4, at 1080-81 (footnote omitted).

(349) Herrera v. Collins, 506 U.S. 390, 416 (1993).

(350) Id. at 400.

(351) Roach, supra note 7, at 424-25.

Ralph Grunewald *

* Ralph Grunewald, Ph.D., LL.M., Assistant Professor, Department of Comparative Literature & Folklore Studies; Center for Law, Society and Justice, University of Wisconsin-Madison. I would like to thank Professor Keith Findley for his thoughtful and detailed comments on a draft of this article.
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Title Annotation:II. The Implementation of Truth and Justice Within Two Systems C. Limits of the Pursuit for Truth: Procedural Justice through VI. Conclusion, with footnotes, p. 1168-1200; Miscarriages of Justice
Author:Grunewald, Ralph
Publication:Albany Law Review
Date:Mar 22, 2013
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