Plea Bargaining and Disclosure in Germany and the United States: Comparative Lessons

Abstract

This article analyzes recent trends in plea bargaining and disclosure of evidence in Germany and the United States. Over the last two decades, a number of U.S. jurisdictions have adopted rules requiring broader and earlier discovery in criminal cases. This development reflects a growing consensus that, in a system that resolves most of its cases through guilty pleas, early and extensive disclosure is necessary to ensure fair and informed outcomes.

The introduction of broader discovery in criminal cases in the United States aligns our rules more closely with German rules on access to the investigative file. At the same time, through its increasing reliance on negotiations to resolve criminal cases, the German criminal justice system has itself moved closer to the U.S. model. As the approaches of the two countries to disclosure and plea bargaining converge, it is worth reflecting on the German experience and examining which features of the German model have proven effective and which continue to pose challenges. The analysis of the German system offers some general ideas on regulating discovery and plea bargaining that could be of interest to U.S. scholars and policymakers, even if a number of the specific rules of German criminal procedure may not fit well within the American adversarial tradition.

Keywords: discovery, disclosure, guilty pleas, plea bargaining, criminal procedure, comparative criminal procedure, adversarial, inquisitorial, Germany

JEL Classification: K14, K42, K40