Uncertainty and the Search for Truth at Trial: Defining Prosecutorial 'Objectivity' in German Sexual Assault Cases

69 Pages Posted: 13 Jun 2009 Last revised: 10 Feb 2012

See all articles by Shawn Marie Boyne

Shawn Marie Boyne

Indiana University Robert H. McKinney School of Law

Date Written: September 20, 2010


According to German legal scholar, Claus Roxin, German prosecutors are the 'most objective civil servants' in the world. Roxin’s assessment of German prosecution practice reflects the conviction of many German legal scholars that prosecutors in Germany’s inquisitorial system function as second judges dedicated to finding the objective “truth.” In this paper I investigate how prosecutors “translate” the normative duty of objectivity enshrined in the German penal code into observable practices on the ground. I examine prosecutorial decision-making in three sexual assault trials. Sexual assault cases pose unique challenges to prosecutors as well as to the definition of objectivity. Because the crime typically occurs in private, the search for truth often focuses on the testimony of the victim and the suspect. In cases in which the physical evidence is inconclusive and the defendant claims that the victim consented, the focus of the fact finder’s inquiry is often directed at the victim’s credibility.

Drawing on transcript and interview data, I propose three models or “faces” of prosecutorial “objectivity.” Surprisingly, despite the fact that judges structure the presentation of evidence in German trials, prosecutors play a critical role in “interpreting” the facts presented at trial. In each of the cases examined in this paper, the face of objectivity is constructed through a relational process that unfolds between the presiding judge and the trail prosecutor. Although many legal scholars maintain that penal code sharply circumscribes prosecutorial discretion in major crime cases in Germany, my research demonstrates that a wide variation exists in the way that individual prosecutors interpret their duty to view the evidence objectively.

Keywords: Criminal Law, Comparative Law, Prosecutorial Discretion, Germany, Sexual Assault

Suggested Citation

Boyne, Shawn, Uncertainty and the Search for Truth at Trial: Defining Prosecutorial 'Objectivity' in German Sexual Assault Cases (September 20, 2010). Available at SSRN: https://ssrn.com/abstract=1338766 or http://dx.doi.org/10.2139/ssrn.1338766

Shawn Boyne (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

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