The role of the judge in the European plea bargaining procedures: Three models compared
| Published date | 01 July 2024 |
| DOI | http://doi.org/10.1177/13657127231217773 |
| Author | Ali Emrah Bozbayındır |
| Date | 01 July 2024 |
The role of the judge in the European
plea bargaining procedures: Three
models compared
Ali Emrah Bozbayındır
Faculty of Law, Bogazici Universitesi, Istanbul, Turkey
Abstract
This article examines the role of the judge in ‘prosecutor-centred’,‘law-centred’and ‘judge-
centred’models of plea bargaining in the European context. A comprehensive study regarding
the judicial role in plea bargaining is necessary, since the principle of double control has fre-
quently been neglected in negotiated case dispositions, and in the literature it has often
been suggested that more robust judicial control of plea bargaining should be in place.
Instead of a pan-European overview, our article focuses on the different models of plea bar-
gaining, particularly in the example of the Swiss abbreviated proceedings, the German confes-
sion bargaining and the English sentence discount. In order to put the judge’s role into context,
the article first introduces the contours of each model before analysing the role of the judge in
these proceedings. In conclusion, the article compares the models discussed, which would pro-
vide a baseline for assessing the judicial role in plea bargaining.
Keywords
judge-centred model, law-centred model, plea bargaining, plea-based sentence reduction,
prosecutor-centred model
Introduction: Current landscape and the roots of plea bargaining in
Europe
In our times, virtually in every criminal justice system, trial-avoidance mechanisms of various sorts carry
the day. Indeed, such mechanisms are spreading across the globe, for they provide a simplified form of
adjudication that enables the authorities to dispose of cases without the question of guilt being determined
at trial. Such abbreviated procedures involve the accused consenting to the application of such proceed-
ings and less demanding evidential requirements via waiving his procedural rights and usually being
awarded a reduction in his sentence in return (Colson and Field, 2011: 59 ff; Della Torre, 2019a;
Corresponding author:
Ali Emrah Bozbayındır, Faculty of Law, Bogazici Universitesi, Istanbul, Turkey.
Email: ali.bozbayindir@boun.edu.tr
Article
The International Journal of
Evidence & Proof
2024, Vol. 28(3) 203–235
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13657127231217773
journals.sagepub.com/home/epj
Gilliéron, 2019, Grande, 2019; Hodgson, 2015; Luef-Kölbl, 2017). Without a doubt, especially during
the last forty years, criminal justice systems have been undergoing a transformation marked by a diver-
sification of the penal response in substantive and criminal procedure law (Garland, 2002; Zabel, 2017).
Accordingly, in the realm of criminal procedure, the negotiated justice, the vanishing trial and the
bureaucratic-administrative approaches to criminal adjudication are probably the best candidates for cap-
turing the phenomenon of the emergence of multi-door procedural avenues, which in some countries
have not only complemented but also in some instances de facto almost confined the traditional contested
trial to an exceptional event (Alberstein and Zimerman, 2017; 2020; Damaska 2004; Horder, 2019: 13;
Langer, 2022; Tulkens, 2002). Today, it is not the courtroom per se but its hallways where the most crit-
ical decisions regarding the outcome of the case are being made; as it were, a criminal law of the hallways
of the court (Della Torre, 2019b: 595 ff; Langbein, 2022: 147). This complex phenomenon brings pro-
found changes with itself regarding the traditional models of trial, eluding the conventional points of ref-
erence and taking shape far beyond the limits of the conventional principles of the post-enlightenment
criminal procedure model (Colson and Field, 2011: 77; Damaska, 2004; Thommen, 2014: 276);
Vogler, 2022: 76).
Of such mechanisms, plea bargaining
1
and its functional equivalents have started to play a significant
role in a variety of ways. Plea bargaining or institutions, which share its fundamental principle do ut des
and such a deal displaces or minimises adjudication. The seemingly appealing exchange of benefits in a
plea bargaining procedure would help the judiciary reduce the case backlog unless one does not consider
the inherent inequality of the parties negotiating and the truth-impairing propensity of the institution.
Dispensing with the search for the truth, whether it be according to adversarial or non-adversarial
tenets, would also mean, if not always, a lenient punishment for the factually guilty and a harsh
justice for the innocent, or an offender who may have had a chance to put forward a valid justification
or an excuse for his criminal act at a contested trial (Grande, 2019: 85). This form of adjudication con-
tinues to spread in Europe (Grande, 2019: 82 ff; Langbein, 2022: 141; Langer, 2022: 86–87; Luef-Kölbl,
2017: 186; Turner and Weigend, 2013: 1400–1401), since especially last four decades in waves of
expansion.
The root causes of this global diffusion of plea bargaining and its functional equivalents do not lend
themselves to a clear-cut analysis since it is a multifaceted, complex phenomenon which is further com-
plicated by the factors that are peculiar to a particular criminal justice system (Tulkens, 2002: 645 ff). In
the European context, however, coping with ever-mounting caseloads and austerity measures—causing
in some countries court closures and an understaffed judiciary—have been frequently advanced as
reasons for introducing such mechanisms (Colson and Field, 2011: 76 ff; Langbein, 2022: 148 f).
Nevertheless, we would like to suggest that the increasing complexity of the classical trial and the expan-
sion of substantive criminal law results in longer and more complex trials (Johnson and Hernandez, 2021:
76). This situation has led practitioners in some countries to abandon conducting proceedings according
to established lex artis but to do so according to their working assumptions, which are marked by infor-
mality and expediency concerns, aimed at simplifying and abbreviating the proceedings (Hassemer,
2011: 197; Sacher, 2022: 332 f). Thus, one commentator has suggested that the current crisis of th e crim-
inal procedure with plea bargaining began with a crisis of the law of evidence (Eschelbach, 2015: 40).
Today the continental inquisitorial model, once thought to be the embodiment of rationalism, is
increasingly become so ornate—even if not as much as the adversarial jury trial—as to make convicting
any accused of an offence difficult and to involve a greater risk of acquitting a person who is in fact guilty
(Dennis, 2020: 38). For example, the elevated status of the rights-based approach towards criminal
1. Theterm ‘plea bargaining’in the present study is used not in a technical sense but rather as a shorthand expression for negotia-
tions and agreements with regard to the outcome of the case. In order not to blur the nuances among the institutions that are going
to be discussed, we shall be using the original term used for a plea bargaining equivalent in a given jurisdiction.
204 The International Journal of Evidence & Proof 28(3)
process which gained currency especially after the World War II fuelled by the ambitious jurisprudence
of the Strasbourg Court has led an increase in disputes regarding the admissibility of evidence for the sake
of protecting values unrelated to the concern for fact-finding accuracy (Damaska, 1997: 14; Weigend and
Turner, 2014: 86). Thus, plea bargaining could, in a way, be regarded as the negative side of the Janus
face of the rights-based criminal procedure model; and the criminal justice authorities, therefore, do
encourage the non-exercise of the plethora of trial rights which are eventually utilised as bargaining
chips via forfeiture during a plea negotiation process rather than being effectively exercised by the
defendant at a classical contested trial (Hassemer, 2011: 197; Hodgson, 2015: 227; Orlandi, 2009:
405; Slobogin, 2016: 1516). Therefore, Orlandi (2019: 569) regards the European openness to negotiated
justice to be a by-product of increasing procedural guarantees for defence rights.
This being so, even the critics of plea bargaining now tend to acknowledge that the clock cannot be
turned back and such institutions are here to stay (Ashworth, 2007; Hassemer, 2011: 197 f; Turner and
Weigend, 2020: 421). The argument for abolishing plea bargaining and imposing a legislative ban on
such practices is still being advanced in the comparative literature, however (Schulhofer, 1992;
Stuckenberg, 2021; 193; Tonry, 2020; Welsh et al., 2021). In due consideration of such failed attempts
in various jurisdictions (Cams and Kruse, 1992; Weninger, 1987), it has been generally recognised that
the total abolition in and of itself would not be the end of the matter, for the judiciary would continue to
follow its working assumptions instead of adhering to legislation or the restrictive guidelines formulated
by the high courts on the ground that plea bargaining accommodates the professional interests of the
lawyers and judges involved (Fezer, 2010; Jahn and Schmitt-Leonardy, 2020; Johnson and
Hernandez, 2021: 88; Turner and Weigend, 2020: 421 f; Young and Sanders, 2000).
This state of affairs has led even the most vociferous critics of such institutions to suggest either, as it
were, taming such practices through enhanced procedural safeguards for improving the plea bargaining
process or envisioning viable alternatives which would not be in stark contrast to the truth-finding objec-
tives of the criminal process, as are the current bargaining practices (Weigend, 2019; Johnson and
Hernandez, 2021: 89). That said, plea bargaining has recently been openly endorsed by the Strasbourg
Court once again as ‘a common feature of European criminal justice systems’.
2
Yet the need for
accuracy-enhancing constraints on plea bargaining has recently been recognised by the Council of
Europe’s Parliamentary Assembly in a resolution concerning the need for minimum standards for trial
waiver systems.
3
In this study, we argue that the judge, in the European context, would play an enhanced role in putting
the envisaged safeguards into practice, and that this is the most likely instance where procedural scrutiny
of a plea deal could be possible. The need for the role of the judge to be re-appraised or remodelled and
for a more robust judicial control or greater supervisory oversight over the power of the prosecutor in the
context of such proceedings has been emphasised by various scholars (Ashworth, 2007; Brooks, 2023;
Coscas-Williams and Alberstein, 2019; Newman, 2021; Slobogin, 2016). Yet, in comparative literature,
the US model of plea bargaining in particular has been criticised due to its rote, perfunctory judicial over-
sight and the fact that judges have little incentive to thoroughly investigate or challenge plea agreements
(Johnson and Hernandez, 2021: 79; Turner, 2021:1017).
Considering the possible effects of the emergence of such trial waiver mechanisms on the judge’strad-
itional role and resulting power shifts among the participants of the procedure, i.e., mostly between the judge
and the prosecutor, and the significant role of the judges regarding the scrutiny of the key elements of the
plea agreements, we shall embark on an analysis of the judicial role in different European models of plea
bargaining procedures. We shall, therefore, probe into questions regarding the current role of the judge in
the European plea bargaining procedures and analyse the extent to which he or she would play a constructive
3. Councilof Europe, Parliamentary Assembly, Resolution 2245 (2018), 12 October 2018.
Bozbayındır205
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