Page 226 - Law of Peace, Volume ,

Pam 27-161-1

hg for a preliminary judicial investigation (Gerichtliche judges prior to the main hearing, as well as a judicial view to be taken by
Vonmtersuchung), 8s or by submitting a bill of indictment them. While preparing the main hearing, ajudge is even permitted to
to the appropriate court. In all other cases, he will termi- get in touch with the defendant, the defense, witnesses and experts
alike, During the main hearing he is in charge of the conduct of the trial,
nate the proceedmg. If a preliminary judicial proceeding is the examination of the defendant, and the eliciting of evidence. While
not held, whether the case goes to trial or not is decided by cross-examination is provided for in the German Code of Criminal
the competent court upon review of the bill of indictment Procedure (StPO), it is rarely applied as neither prosecuting nor defend-
which contains a motion by the prosecutor to open the ing counsel are used to elicit[ing] evidence in court. . . . Where the proof
"main proceedings." Along with the bill of indictment, of guilt of the defendant is insflicient, the prosecution will itself ask for
an acquittal. Where a defendant has been wrongfully convicted, the
the prosecutor furnishes his investigative fde (i.e., his prosecution will put forward an appeal for the restitution of his rights.
dossier). Thc court is to open the "main proceedings" if This independent and impartial position of the state prosecutor is made
the evidence in the dossier indicates that the accused is possible by the judge bearing the responsibility for a complete and im-
"suiXciently suspected of the offense.." 86 When a partial examination of the evidence. This in turn presupposes the prior
preliminary judicial investigation is held, it is not to extend knowledge of the fde [dossier] by the judge. So it is possible to claim that
any further than is necessary to arrive at a decision as to the prior access to the fie is closely related to the structure of German
criminal procedure. 89
whether the "main proceedings" should be opened or the
charges dismissed. 87 Upon completing the preliminary in- A-24.Composition of the Courts. if one factor could be
vestigation, the examining judge (Untersuchungsrichter) chosen to explain the differences between the legal
returns the file to the prosecutor with his recommenda- systems of Germany and the United States, it would have
tion. If the prosecutor believes that the matter should go to be that in Germany there are no jury trials. Because
to trial, the file is sent to the appropriate court with a bill of there are no "jurors," German criminal procedure does
indictment for the court's decision. not contain extensive exclusionary rules with respect to
A-23. Charges. In ~ermany prosecutors generally evidence. Although in earlier periods German trials were
charge an "entire transaction," i.e., conducted by professional judges without the assistanceof
lay judges, the system as it operates today is a middle
The entire criminal transaction is presented to the court, rather than
merely those elements selected by the prosecutor. For example,, if ground between trial by judge alone and a jury trial
employees of a bank were taken as hostages and a police officer killed in because it is conducted before a mixed bench of profes-
the course of a bank robbery, the prosecutor presents all the facts to the sional and lay judges. These lay judges are not merely
court and fies the charge for all possible offenses; he cannot choose to "jurors" since they participate with the professional judge
prosecute only one of the offenses and thereby bring a reduced charge. in deciding questions of law and fact. However, it should
A final judgment of conviction or acquittal is res judicata as to the entire
transaction described in the charge. The concept of the criminal trans- be noted that the lay judges have no prior knowledge of
action is not limited to acts committed in one place and at one time. A the file (dossier). They hear the evidence for the fust time
transaction may include several separable acts that can be considered at the trial. 90
one episode. A series of frauds committed in several cities by a traveling A-25. The Exclusionary Rule in Germany. In addition
salesman, the writing of numerous bad checks, or the fhg of several
to eliminating exclusionary rules (such as the heresay
false tax returns have all been treated as one transaction. 88
rule) which are, at least partially, based upon considera-
At this stage, the charges are before the trial court for the tion of the lack of "sophistication" of jurors, the German
"main proceeding" (Hauptverfahren) . Before discussing system has also felt little urge to use exclusionary rules of
in detail the Hauptverfahren, it may be best to put the en- evidence to discourage police and prosecutorial abuse. For
tie proceeding in perspective. example, although a confession obtained by illegal means
Once a charge has been preferred, a German judge, using the fde of the might be excluded even if the defendant consents to its
case,. . . will decide whether to authorize main proceedings (Hauptver- use, 91 Germany has not adopted the "fruit of the
fahren), the question being whether there is sufficient evidence of guilt
of the person charged. The latter will fust be heard. In addition the court poisonous tree" doctrine. The Federal Supreme Court of
can order supplementary judicial investigation of the case. It can also Germany has held that
decline to open main proceedings. Furthermore., the presiding judge is failure to warn the defendant about his right to remain silent and his priv-
responsible for the preparation of the main hearing of the case. In this ilege to request an attorney before his interrogation does not render in-
way he decides whether to grant a defendant's application to obtain evi- admissible the proof obtained as a result of his impermissible question-
dence. So on his own authority he may order the summoning of wit- ing. 92
nesses and experts, or the production of new evidence. He can also
make out an order for an examination before designated or requested A-26. Conduct of the Trial. a. General. In a German
criminal trial, there are no opening statements by defense

' 8 A preliminary judicial investigation is required for cases going counsel and prosecutor. The presiding judge calls the case
to the Bundesgerichtshof; the Oberlandesgericht, or the Schwurgericht and determines whether the defendant, counsel, and
for trial or where the prosecutor of defendant moves for such an in- summoned witnesses and experts are present. If so, the
vestigation. The preliminary judicial investigation is opened and carried
on by a special examining judge (Untersuchungsrich&). See SffO
55 178-197. 89. Jescheck, supra note 82, at 246-47.
86. StPO at 5 203. 90. Id. at 249-252.
87. Id. at 5 190. 91. StPO 5 136(a).
88. Hermann, supra note 52, at 495. 92. Jescheck, supra note 82, at 246.