The Jury Is Out: Negotiated Agreements in the German Inquisitorial System

This thesis deepens the standard comparison of adversarial and inquisitorial systems by using the United States and Germany as models. In recent decades, both American and German systems of criminal procedure have had to adapt to rising caseloads and increasing complexities in substantive criminal law by developing ways to circumvent costly and time-consuming trials. Both the United States and Germany have come to rely upon informal agreements to accomplish this. These agreements—known as plea bargains in the United States and negotiated agreements in Germany—violate the fundamental principles upon which adversarial and inquisitorial systems are based. The highest courts of both countries have attempted to rationalize and regulate these agreements within their respective ideological frameworks. This thesis examines the extent to which these rationalizations and regulations have been successful, and specifically, how the reluctance of German courts to confront the ideological contradiction that informal agreements represent has affected the legitimacy of the inquisitorial system and the relationship between citizen and state that it reflects.