Comparative Criminal Law

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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10 Responses

  1. Orin Kerr says:

    What does it mean to say that “the face of objectivity is constructed through a relational process between the presiding judge and the trial prosecutor”?

  2. Shawn Boyne says:

    In the main proceeding (the German form of trial), the judge(s) determine what witnesses will testify and pose the majority of questions to those witnesses. After the judge has finished his/her questioning, the prosecutor and then the defense may question the witness. Although German prosecutors are required to pursue evidence whether it is inculpatory or exculpatory, the degree to which they take that mandate seriously depends upon their relationship with the presiding judge. In the paper, I show that prosecutors will sometimes abandon their duty to pursue the truth in order to preserve their relationship with the court. This may occur in cases where the prosecutor believes that the victim is lying or in cases where the evidence is unclear. Prosecutors have the power to ask the court to order the police to obtain more evidence in a case (i.e. a DNA test, further witnesses) and even to argue for an acquittal. Despite the fact that German prosecutors have been described as the “most objective civil servants” in the world, their willingness to act objectively is tempered by their unwillingness to challenge the court. The problem is particularly acute in those cases where the courtroom prosecutor is not the prosecutor who supervised the case investigation. In those cases, prosecutors are often unwilling to take actions that implicitly criticize the work of their colleagues.

  3. Orin Kerr says:

    Got it. Thanks, Shawn.

  4. Lurker says:

    I don’t quite understand how finding out the truth can interfere with the prosecutor’s relationship to the court – they are both supposed to find out the truth after all.

    This is especially true since neither the prosecutor nor the court can “lose” a case which ends with an acquittal (unless the prosecutor truly believes the accused to be guilty while the court does not).

  5. S. Boyne says:

    In an ego-less world where the “truth” was clear, all of us would be completely open-minded to opposing opinions. However, prosecutors and judges may weigh the credibility of witnesses differently and formulate different explanations of factual inconsistencies. Decision-makers may become convinced that they are right and the other person is wrong. Also, a judge may feel that a defense attorney or prosecutor is challenging their authority. As a result, the path to “truth” is shaped by cognitive and psychological factors that cause decision-makers to become invested in their perception of the truth. The judgment that comes at the end of the trial is not an isolated decision about the suspect.

  6. Orin Kerr says:

    Shawn, if I understand you correctly, your point is that prosecutors have an incentive to agree with the judge because they want the judges to like them. One question that raises is why: Do the judges have some power over the future careers of the prosecutors?

  7. Shawn Boyne says:

    Orin, judges do not have direct power over prosecutors’ future career. But they can informally telephone the prosecutor’s boss and criticize the prosecutor. The effectiveness of that strategy depends on whether the boss places a greater value on encouraging prosecutorial independence than preserving relationships with judges as well as the judge’s own reputation. The structure of the prosecution service is relatively flat. Most prosecutors will enter the service and simple remain a “normal” prosecutor through their entire career. A small number will be promoted to the position of department leader after 15 years of service. So, individuals who are determined to seek that promotion may be more inclined to tow the line.
    In some states the practice is to rotate individuals between positions in the ministry, the judiciary, and the prosecution service. Ironically, while those rotations are ostensibly designed to increase “objectivity,” in fact they undercut an individual’s decision-making independence. For example, the prosecutor who filed charges against former Chancellor Helmut Kohl found himself “promoted” to a position as a family court judge in a small town. The promotion decisions are made at the Ministry of Justice level of the bureaucracy.

  8. Lurker says:

    Why should a judge be offended by prosecutors who express different opinions on the current case? If that were the case (it isn’t) and the prosecutor would actually care about it (he might), shouldn’t prosecutors also shy away from appealing decisions? They (quite obviously) don’t – sometimes they even appeal on behalf of the accused.

    The problem is to be found somewhere else: A prosecutor might not want to offend his superior (Gruppenleiter, Oberstaatsanwalt, leitender Oberstaatsanwalt etc.) and thus might not be too eager to argue for an acquittal when his “boss” believes the accused to be guilty. While many superiors will accept such a “change of mind” (since the case might look different in the courtroom after all), a prosecutor may have a hard time explaining it to others.

  9. Shawn Boyne says:

    Lurker, prosecutors actually appeal case decisions on behalf of a defendant extremely rarely. If you read the paper, you will see how this relational dynamic between judges and prosecutors played out in three cases that I witnessed. I also argue that a prosecutor’s desire not to offend a colleague who may have supervised the case investigation also influences prosecutorial ‘objectivity’ in the courtroom.

  10. Lurker says:

    It’s true that appeals by the prosecution on behalf of the defendant don’t happen that often. But there’s a simple reason for it: Even regular appeals by the prosecution can lead to a milder sentence (or even an acquittal), while an appeal (only) on behalf of the defendant can never lead to a harsher sentence. So there is no need to appeal only in favor of the defendant even if the prosecution is sure that the sentence is too harsh.

    By the way: Every appeal – not just those in favor of the defendant – shows that the prosecutor doesn’t agree with the courts judgement. But I’ve never seen a german prosecutor who was reluctant to appeal a decision he believed to be incorrect.