Prosecutors and Bargaining in Weak Cases: A Comparative View

Abstract

One of the most controversial uses of prosecutorial discretion in plea bargaining concerns cases involving weak evidence of guilt. When a prosecutor bargains about the charges or even the facts in a case with weak evidence, at least three problems may arise. First, if the charge bargain is generous, it may coerce an innocent defendant to plead guilty. Second, such a bargain may let a guilty defendant off too easily, thus disserving the public and victim’s interests. Third, if the parties bargain about the facts, the result may distort the truth of the case.

In this book chapter, I examine how three major legal systems - those of the United States, Germany, and Japan - approach these potential problems. To do so, I discuss how prosecutors in these systems would resolve a hypothetical criminal case involving weak evidence. I have chosen to compare the United States, Germany, and Japan because of their distinct approaches to both plea bargaining and prosecutorial discretion. In the United States, prosecutors have largely unfettered discretion in both charging and plea bargaining. Germany allows a form of sentence bargaining that involves both the prosecutor and the judge, but sharply limits prosecutorial discretion with respect to charging and prohibits charge and fact bargaining. Japan does not allow any explicit bargaining, but gives prosecutors broad discretion to refrain from filing charges.

After describing the relevant differences in the prosecutors’ role in these countries, I raise several questions about the proper approach for prosecutors in evidentially weak cases. While none of the systems I discuss has a perfect solution to the problem of factually weak cases, the comparison may encourage us to rethink three key features of American-style plea bargaining: our practice of aggressive charge bargaining, particularly in cases where the evidence is weak; the lack of limits on plea discounts; and the limited external and internal review of prosecutorial charge bargaining decisions.

Keywords: plea bargaining, prosecutorial discretion, prosecutors, criminal justice, comparative criminal procedure, Germany, Japan, United States

JEL Classification: K14, K42