German penal orders never penalize defendants for exercising trial rights

Evidence

The German use of penal orders differs from plea bargaining in several respects. First, the defendant need never appear in court. If in misdemeanor cases the process is the punishment, the penal order eliminates that punishment. The closest American analogy to the penal order is the traffic ticket, which allows defendants to mail in the fine or go to court and contest their innocence. Second, penal orders involve no negotiations: no offer and counteroffer. If the accused rejects a penal order, the prosecutor cannot make a second offer; the matter must go to trial. However, the defendant’s rejection of a penal order is not final; the defendant can accept the penal order, and the punishment it specifies, during the course of the trial or anytime up to the court’s announcement of its verdict. Finally, the defendant does not risk a harsher punishment by going to trial. The defendant can accept the penal order after the trial has commenced, so the penalty it specifies is not an inducement to forego trial; and German judges do not impose more severe punishments on those who reject penal orders and demand a trial. Thus, defendants in Germany are not penalized for asserting their rights. — G. Alan Tarr, Judicial Process and Judicial…, 1741

Categorization

• XREF: Reframes the American emphasis on protecting the right to trial from a comparative procedural lens.