Uncertainty and the Search for Truth at Trial: Defining Prosecutorial "Objectivity" in German Sexual Assault Cases
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 Article 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 testimonies 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 of '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 Article, the face of objectivity is constructed through a relational process that unfolds between the presiding judge and the trial 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.
Recommended CitationShawn Marie Boyne, Uncertainty and the Search for Truth at Trial: Defining Prosecutorial "Objectivity" in German Sexual Assault Cases, 67 Wash. & Lee L. Rev. 1287 (2010).
Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol67/iss4/4