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witnesses leave the courtroom and the defendant is ex- fendant will be asked himself whether he has anything to
amined by the presiding judge regarding his personal add in his defense. Once closing arguments have been
situation. Thereafter, the prosecutor reads the accusation made, the court retires to deliberate its determination of
and, under certain circumstances, is permitted to present guilt or innocence and to fix the sentence, if appropriate.
the legal evaluation on which the order to open the trial The civil law system generally does not require a
has been based and to express his own legal opinion. The unanimous vote for a verdict of guilty.
defendant is advised of his right to remain silent. If he A-27.Conviction and Sentencing. a. Conviction. The
desires to speak, he is immediately examined by the German Code of Criminal Procedure states that a "ma-
presiding judge. At the conclusion of a defendant's state- jority of two-thirds of the votes is required for any decision
ment, if any, both defense counsel and prosecutor are against an accused which concerns the question of guilt
given an opportunity to question the defendant in order to [or] assessment of punishment." 95
supplement his testimony. This is not a cross-examination b. Sentencing. A study of sentences authorized by the
in the common law sense; the defendant is not allowed to German Penal Code (StGB) and those actually imposed
testify under oath as a witness. Once the defendant has by German courts show that they are generally less severe
been questioned, if he desires to speak, the presiding than those in the United States. 96 In 1969, Germany
judge receives the evidence in the case. enacted two reform acts which were not merely changes in
b. Introducing Evidence. In a German trial, evidence is criminal law, but actually revealed ". . .a new basic orien-
received according to the Instruktionsmaxime, i.e., in tation: a beginning with de-mythologizing and humaniz-
order to determine the truth the court shall, upon its own ing criminal law." 97 Certain acts were made noncriminal
motion, extend the taking of evidence to all facts and evi- and the concept of penal sanctions was reoriented. The
dence which are important for the decision. The introduc- law was divided into two parts, the fust of which was less
tion of proof does not proceed on direct examina- controversial and became effective on I April 1970. The
tionlcross-examination as in the United States. Rather, second part, which included the General Part of the Penal
witnesses are allowed to testify as to what they know about Code, as well as the new concepts with respect to
the subject matter in a narrative form and only then are penalties, did not come into effect until 1 January 1975.
they questioned further. 93 After each witness, or after the The penal policy as enacted in these two pieces of legis-
introduction of each piece of written proof, the accused is lation provides for uniform imprisonment for all
asked if he has any statement to make and, upon request, prisoners, regardless of offense, thus doing away with the
the prosecutor and the defense counsel may make a state- former sanction of penal servitude. The reform acts also
ment. The court is not bound by the evidence presented restricted the use of "short-term" imprisonment (i.e.,
by the prosecutor or by the defense counsel. In fact, it is less than six months) except in unusual cases. The rules
fair to say that the prosecutor loses control of the case regarding parole and suspension of sentence were
once formal charges have been filed. 94 He is not at liberty liberalized, thus placing formerly ineligible persons within
to drop the case without judicial concurrence, and the the zone of consideration.
court is not bound by the prosecutor's theory of the case. c. Fines. In these reform acts Germany also adopted
It therefore follows that the prosecutor is not required to the Scandinavian model of imposing fines in "daily incre-
make out a prima facie case; nor is there a requirement ments." Under this model, a judge is not completely at
that a particular fact be substantiated by more than one loose ends in determining the fine to be imposed. It
piece of evidence. In fulfiing the Instrukstionsmaxime a involves a 2-step calculation: fust the judge must determine a "dayw-
court is not bound by a defendant's confession and it may multiplier appropriate for the particular offense, e.g., 30 days for burgla-
question as many witnesses as necessary to satisfy itself of ry. His next step is to calculate the amount for each day, having regard
the accused's guilt. The burden of disproving such ex- for the offender's personal and economic circumstances. Thus if our
culpatory defenses as insanity, drunkenness, self-defense, burglar's day tax is assessed at DM20, his fine would amount to
DM600. 98
or necessity is upon the government. However, the defen-
dant has the burden of asserting the facts necessary to d. Probation. In some instances involving minor
raise such a defense (Darlegungslast).If the government offenses, a perpetrator's record may be "wiped clean" ifa
cannot meet its burden, the point is established by the successful probation period is completed. The reform acts
presumption in the defendant's favor. also introduced the concept of rehabilitating in "institutes
c. Closing Statements. At the conclusion of the evi-
dence, the prosecutor and the accused have the right to
95. SIP0 8 63(1).
make closing statements, with a right of reply in the 96. See generally Hennann, supra note 52, at 473. For a com-
prosecutor and the right to close in the defendant. Even if parison of criminal sanctions in various European countries see Glos, A
the defense counsel has spoken for the defendant, the de- Study in the Treatment of Crime and Law Ellforcement in the United
States as Compared to the European Countries, 3 St. Mary's L. J. 177,
179-201 (1971).
93. StPO $8 69(1), 72. 97. Eser, supra note 45, at 252.
94. Langbein, supra note 60, at 447. 98. Id. at 256.