Agreements and “deals” in criminal proceedings

The modern criminal process is characterized by so-called “Negotiated Agreements”. Criminal defence lawyers, prosecutors and courts often feel more comfortable if the essential aspects of a case have already been discussed in advance in small groups. You then know what to expect in the public main hearing.

For the accused, such an arrangement has the advantage that he also essentially knows what to expect.

Agreements and "deals" in criminal proceedings

1. Point of no return

One danger of collusion is that it does not always lead to the desired results. Sometimes it makes sense for the defence counsel to announce a confession to the judge – for example in the event that the court guarantees a suspended sentence. It becomes problematic if the court has thought of a prison sentence of several years, but was not quite sure whether the evidence for a conviction is sufficient. Judges are also only human beings. As soon as they have learned that a confession is about to be made, their motivation to meticulously justify an acquittal after a failed agreement will be low. Once agreement discussions have taken place, it is therefore not easy to pretend that the possibility of a confession has never existed before. In this context one also speaks of the “point of no return”. This means that understanding talks always have an effect in criminal proceedings – even if no agreement can be reached.

An even greater danger of “deal practice” is that an innocent man could come under pressure to make a false confession. The legislator and the Federal Constitutional Court have been trying for years to contain this danger. The gap between the punishment of a confessed defendant and the punishment of a nonconfessed defendant (the disparity of ranges of sentences) must not become too wide.

A defence strategy aimed at a confession within the framework of an agreement often makes sense, but it is not an all-purpose weapon. Ultimately, as so often happens, it is a case-by-case decision whether this strategy is right for a defendant. It presupposes experience, empathy and a confident use of the tools of the Code of Criminal Procedure.

2. Who is bound by agreements?

In 2009, a central standard on understandings was inserted into the Code of Criminal Procedure: § 257c StPO. This only provides a binding obligation for the court. Defense, public prosecutor’s office and defendant are not bound to agreements in any case. A judge cannot be forced to come to an agreement. In general, the court can only be bound by what is legally permissible.

If something is agreed upon, which may not be agreed upon at all, no binding effect occurs in this respect. Also § 257c Abs. 4 StPO provides several possibilities, which let a once occurred connection void again.

The law formulates the omission of the commitment as follows:

„The court shall cease to be bound by a negotiated agreement if legal or factually significant circumstances have been overlooked or have arisen and the court therefore becomes convinced that the prospective sentencing range is no longer appropriate to the gravity of the offence or the degree of guilt.”

If, after an negotiated agreement, it turns out that the defendant’s confession made the subject of the agreement was wrong, the defence counsel can no longer hold the court to what was agreed for the case of the confession. If, however, the binding of the court ceases after the accused has made a “genuine” confession, it should not be usable. It should not be allowed to use it at his expense.

3. Court Practice

In practice, the impartiality of the court should also have been taken into account by then at the latest. In the event of a conviction, the court must only ensure that the confession is not mentioned in the written grounds for the conviction. Such prohibitions of exploitation are therefore of more theoretical importance than reliable tools of a well thought-out defence strategy.

Under certain circumstances, the obligation to communicate can also be waived if the accused does not behave as he had promised. If, for example, the defendant insists on having certain points clarified by petitions for evidence, even though he has previously declared to the court that he will not do so, an negotiated agreement may become ineffective.

The regulation on mutual understanding is not only a rather new one, but also one of the most controversial norms in the StPO. Much is still unclear and controversial in detail, so that it will require still some supreme court decisions, until finally legal security prevails.

In March 2013, the Federal Constitutional Court issued a landmark decision on the legal regulation of collusion in criminal proceedings. Some of the most important questions have since been clarified. In practice, however, there is still a great deal of uncertainty about the details.