Book Review. The German Prosecution Service: Guardians of the Law?

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Boyne, Shawn Marie. The German Prosecution Service: Guardians of the Law?  Berlin: Springer, 2014. 249p. $129.


American prosecutors have a great deal of discretion to impact the outcome of a criminal case.  The plea bargain – including considerations of when it is offered, to whom it is offered, and under what conditions it is offered – is an essential and expected part of criminal law practice.[1] Whether plea bargaining is viewed as an unethical and coercive tool,[2] a fair and reasonable means for both parties to avoid trial, or something in between, it is part of the adversarial legal system we operate within in the United States.  For comparative criminal law scholars, then, Germany – with its traditionally strong stand against prosecutorial discretion[3] – presents an intriguing case for closer study.

In The German Prosecution Service: Guardians of the Law?, Shawn Marie Boyne, comparative politics scholar and professor at the Indiana University Robert H. McKinney School of Law, examines the widely-held view of German prosecutors as “guardians of the law” and “the most objective civil servants in the world” (p. 6), going directly to the source to understand what institutional and organizational forces shape and challenge their truth-seeking practices.  Having observed that “no comprehensive study of German prosecution practice has been published in English” to date (p. 13), Boyne endeavors to fill the gap with this book.  Borne from several years spent living in Germany conducting research for her Ph.D. dissertation, it shows the reader the unprecedented access Boyne – a former criminal trial lawyer herself – enjoyed to interview and observe German prosecutors in the course of their work.  

In nine well-organized chapters, Boyne first briefly compares the operations of the German Rechtsstaat with the American rule of law state,[4] then looks at the history of the prosecution service, the development of the German prosecutor and the organizational culture of prosecution practice, and finally analyzes the prosecutorial decision-making process and the application of prosecutorial discretion in minor and major crimes cases.  Special features of the book include multiple excerpts from (anonymous) interviews Boyne conducted with prosecutors, various tables illustrative of case files or German code sections, and complete bibliographies for each chapter. 

Boyne is not the first to compare the German and American criminal law systems, or to look at the German prosecution critically – and perhaps others may have undertaken more comprehensive studies on certain aspects.[5]  Nonetheless, for an analysis of the German prosecution, her reasoning in the context of a detailed ethnographic analysis is certainly unique.  Central to Boyne’s thesis is that despite the efforts of the German criminal justice system to constrain prosecutorial discretion by the law standing alone, “the organizational culture of the prosecution, rather than the law decisively shapes how prosecutors exercise discretion” (p. 233).  Particularly illustrative of this is Chapter 7, wherein Boyne takes the reader into the courtroom to follow prosecutors’ handling of three rape cases, arguing “that prosecutors perform the dance of ‘objectivity’ differently depending on the facts of the case, their relationship with the court, and the strength of the evidence” (p.15).

Criminal law and comparative law researchers will find this book especially useful.  It would make an excellent, though non-essential, addition to an academic law library’s collection.

Reviewed by: Catherine Biondo, 2014. Legal Reference Librarian, Northeastern University School of Law Library, Boston, MA. c.biondo@neu.edu.


[1] See Daniel Medwed & Michael Meltsner, Plea Time for Snowden, The Nation, April 7, 2014, at 6, 8 (describing how prosecutors control the process); Michael M. O’Hear, Plea Bargaining and Procedural Justice, 42 Ga. L. Rev. 407, 468 (2008) (discussing system dominated by plea bargaining).

[2] See Andrew Shaver, Ethical Lapses in Criminal Plea Bargaining: What Can Be Done About Them, 36 J. Legal Prof. 559 (2011) (considering the ethics of plea bargaining); H. Mitchell Caldwell, Coercive Plea Bargaining: The Unrecognized Scourge of the Justice System, 61 Cath. U. L. Rev. 63 (2011) (examining ramifications of “coercive bargaining”).

[3] Floyd Feeney, German and American Prosecutions: An Approach to Statistical Comparison (U.S. Dep’t of Justice; Bureau of Justice Statistics NCJ-166610, Feb. 1998), available at, http://www.bjs.gov/content/pub/pdf/gap.pdf.

[4] In brief: In the German Rechtsstaat, the individual’s “rights are an integral part of the state’s legal foundation” and the law and the state exist in a “symbiotic relationship” (p.2),whereas in a rule of law state, “tension exists between the law and state power” and “state power … trump[s] individual rights more frequently” (p.3).

[5] See, e.g. Feeney, supra note 3; Floyd Feeney & Joachim Herrmann, One Case-Two Systems: A Comparative View of American and German Criminal Justice Systems (2005); Richard S. Frase & Thomas Weigend, German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 B.C. Int'l & Comp. L. Rev. 317 (1995); John H. Langbein, Controlling Prosecutorial Discretion in Germany, 41 U. Chi. L. Rev. 439 (1974); John H. Langbein, Land Without Plea Bargaining: How the Germans Do It, 78 Mich. L. Rev. 204 (1979)

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