Langer and Doherty examine whether procedural reforms at the International Criminal Tribunal for the former Yugoslavia (ICTY), which were introduced to expedite the tribunal’s proceedings, were in fact successful. The study finds that these so-called “managerial judging” reforms-e.g., introducing pretrial judges, mandating pretrial conferences, asking the parties to exchange information about their cases earlier in the [...]]]> Máximo Langer and Joseph W. Doherty at UCLA have just posted Managerial Judging, Court’s Limited Information and Parties’ Resistance: An Empirical Assessment of Why the Reforms to Expedite Procedure of the International Criminal Tribunal for the Former Yugoslavia Did Not Work. It’s an excellent piece and a rare example of empirical work in international criminal law. Its findings show the valuable contributions that empirical studies could make to the field.

Langer and Doherty examine whether procedural reforms at the International Criminal Tribunal for the former Yugoslavia (ICTY), which were introduced to expedite the tribunal’s proceedings, were in fact successful. The study finds that these so-called “managerial judging” reforms-e.g., introducing pretrial judges, mandating pretrial conferences, asking the parties to exchange information about their cases earlier in the process, encouraging them to reach agreements on facts and legal issues, and reducing the number of witnesses-failed to accomplish their intended purposes. In fact, many of these reforms lengthened the proceedings.

The study controlled for a number of variables that could explain the result (e.g., specific case characteristics, court capacity, and guilty pleas). So why might the reforms have failed? The main reason seems to be that the new managerial tools were not used frequently enough. Moreover, the tools that were used added procedural steps that took up time, without reducing other procedures to make up for the added time.

According to Langer and Doherty, the managerial tools were not frequently used for three principal reasons: 1) under a largely adversarial system such as the one at the ICTY, judges have limited information about the case at the time they have to make decisions to streamline the proceedings; accordingly, they are reluctant to use managerial tools to shorten the proceedings because such tools may also lead to inaccurate or unfair outcomes; 2) the ICTY has not attempted to train, monitor, or incentivize judges to implement the managerial reforms consistently; 3) both prosecutors and defense attorneys have little incentive to expedite proceedings and prefer instead to maintain control over their cases.

The authors conclude by arguing that their findings should not be taken as disheartening. They point out that, in international criminal cases, managerial judging may often interfere with the goal of reaching accurate and fair outcomes. ICTY judges were therefore correct to be cautious in implementing the managerial procedural reforms.

There will soon be another ground for the authors to test their conclusions. At the permanent International Criminal Court, which follows a more inquisitorial model, judges would receive the evidence disclosed by the parties early during the pretrial stage. This may minimize one of the major problems that Langer and Doherty found with the ICTY procedural reforms-that judges lacked sufficient information about the case when deciding whether and how much to streamline the proceedings. Because ICC judges would have a better grasp of the case and more extensive information early in the process, they may be better able than their ICTY counterparts to expedite proceeding without interfering with accuracy and fairness. As the ICC begins trying more cases, Langer and Doherty-and others interested in the empirical study of international criminal procedure-should have extensive opportunities for further analysis.

On May 28, the German Bundestag passed a law amending the German Code of Criminal Procedure to regulate plea bargaining. The legislation ratifies a practice that developed informally more than two decades ago. As bargaining became more common in the late 1980s and 1990s, courts intervened to set broad requirements for the practice. The recent legislation largely codifies these requirements. But there are also some important departures and other provisions that are interesting from a comparative perspective.

First, the law gives the court a central role in the negotiations. This is in stark contrast to the rules in most U.S. jurisdictions, under which judges are strictly prohibited from participating in plea [...]]]> Germany was once known as a “land without plea bargaining.” Those days are now long gone.

On May 28, the German Bundestag passed a law amending the German Code of Criminal Procedure to regulate plea bargaining. The legislation ratifies a practice that developed informally more than two decades ago. As bargaining became more common in the late 1980s and 1990s, courts intervened to set broad requirements for the practice. The recent legislation largely codifies these requirements. But there are also some important departures and other provisions that are interesting from a comparative perspective.

First, the law gives the court a central role in the negotiations. This is in stark contrast to the rules in most U.S. jurisdictions, under which judges are strictly prohibited from participating in plea negotiations. Under the new German legislation, judges may initiate negotiations and may indicate the maximum and minimum sentence they would impose as part of the bargain. This requirement has the advantage of involving a neutral party in the bargaining process. At the same time, it raises concerns about judicial bias and even coercion, since the same judges who are involved in the negotiations will be determining the sentence. And if the bargain falls apart, the same judges will be deciding the guilt or innocence of the defendant.

The new law also settles an issue that was contested in the courts for some time-the validity of bargained-for waivers of appeal rights. The legislation prohibits any bargains that include a waiver of the right to appeal the verdict or the sentence. The prohibition on negotiated appeals waivers is a feature that U.S. courts and legislators would be well-advised to consider. Although negotiated appeals waivers are undoubtedly efficient, they also insulate from review a practice that is already criticized for its lack of transparency and its potential coerciveness.

The German legislation further provides that a court may reject a bargain it helped negotiate “when legally or factually significant circumstances were overlooked or presented themselves for the first time, and the court concludes for this reason that the predicted sentence is no longer proportionate to guilt. The court may also reject the agreement when further conduct by the accused contradicts the basis on which the court made its sentence prediction.” This provision aims to reconcile plea bargaining with two longstanding principles of German criminal procedure: 1) that the court has an independent duty to investigate the truth in the case; and 2) that the court must impose a sentence proportionate to guilt. But as German scholars like Thomas Weigend have suggested, the provision gives a surprising amount of leeway to judges in changing their minds about bargains they have helped negotiate. The defendant would then have no choice but to appear for trial before the same judges who have just rejected the bargain.

Another noteworthy element of the new legislation is its requirement that, if the court rejects a bargain, the defendant’s confession may not be used as evidence against him in subsequent proceedings. Under earlier case law, even when the court rejected a bargain, the defendant’s confession could be used against him at trial. The practical effect of this change may not be as great as it appears, however, since the same judges who have heard the excluded confession would be the ones conducting the subsequent trial.

In a broader context, Germany’s official embrace of plea bargaining is notable because it appears to represent a global trend. Countries as diverse as Russia, India, Taiwan, Australia, and Argentina have now adopted some form of plea bargaining. As a major civil-law system, Germany may well influence further developments in this direction around the world. It might not be long before countries like China and Japan-which have so far largely resisted plea bargaining-formally adopt the practice. And even countries with longstanding traditions of plea bargaining, such as the United States, could learn from Germany’s experience about new ways to enhance the fairness of plea bargaining.

As the Supreme Court’s term has just ended, I could not help but comment briefly on some of the Court’s pronouncements on criminal procedure. Because of my interest in comparative criminal procedure, I was curious to observe how in several recent opinions (Herring v. United States; Montejo v. Louisiana; Kansas v. Ventris), the Court suggested that “truthseeking” was a central concern of our criminal justice system and may trump individual liberties in certain cases. Specifically, the Court construed the Sixth Amendment right to counsel and [...]]]> Many thanks to Concurring Opinions and Dan Solove for inviting me to guest blog and to Dan for the kind introduction. I look forward to the visit and am excited to be part of C.O.’s talented and diverse group of bloggers.

As the Supreme Court’s term has just ended, I could not help but comment briefly on some of the Court’s pronouncements on criminal procedure. Because of my interest in comparative criminal procedure, I was curious to observe how in several recent opinions (Herring v. United States; Montejo v. Louisiana; Kansas v. Ventris), the Court suggested that “truthseeking” was a central concern of our criminal justice system and may trump individual liberties in certain cases. Specifically, the Court construed the Sixth Amendment right to counsel and the Fourth Amendment’s exclusionary rule more narrowly than before, out of concern that these individual rights and remedies interfere with the goal of truthseeking. For those familiar with the “inquisitorial” systems of continental Europe, the focus on truthseeking would sound familiar. European courts have long emphasized the preeminence of the search for truth in the criminal process. But is the adversarial American criminal justice system moving toward a new understanding of its goals, similar to that prevalent in inquisitorial systems? Are we moving away from our entrenched “anti-inquisitorialism“?

One of the latest decisions of the term suggests that truthseeking does not always win the battle. In D.A.’s Office v. Osborne (a 5 to 4 decision), the Court denied the existence of a due process right to DNA evidence after conviction. In that case, the State of Alaska conceded that there was no reason to doubt that the retesting of the evidence requested by Osborne would conclusively establish his guilt or innocence. If Obsorne were to be proven innocent, the retesting could also help determine the true offender.

The only reason given by Alaska for denying Osborne access to the DNA evidence was that it would interfere with the state’s interest in finality. The Court’s majority agreed and also declared its reluctance to interfere with Alaska’s decision by creating a federal constitutional right to access DNA after conviction. The Court acknowledged that 47 states and the federal government already provide for such access. It was interesting to note that both the majority and the minority made this point in favor of their position-the majority as a reason to defer to local democratic processes which are already addressing the question, and the minority to show that a consensus has emerged that post-conviction DNA access is part of our shared understanding of fundamental fairness.

In the end, for five justices, truthseeking was outweighed by the interest in finality of judgments and deference to states. If the 2008-09 term is any indication, the Court seems inclined to elevate the position of truthseeking relative to individual rights. But the Court is willing to let it take a back seat when it believes that it too severely threatens state prerogatives or the efficiency of the criminal justice system.