Shawn Marie Boyne
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Identifying the Organizational Culture of Prosecution Offices in Germany and the United States
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Although both the United States and Germany are democratic states governed by the rule of law, the role that law plays in shaping decision-making in both countries is dramatically different. The role of law in society is a product of a nation’s unique history, culture, and legal traditions. To date, the bulk of traditional comparative analyses of the two legal systems have focused on systemic differences such as the fact that one system is adversarial, the other inquisitorial. While American law developed in the common law tradition, German law is regarded as a legal science-meticulously constructed on a civil law edifice. At the same time, developments in both countries, such as the establishment of the Bundesfassungsgericht in Germany and conservative attacks on “judge-made” law in the U.S., suggest that these broad comparative analytical frameworks need to be supplemented, if not rewritten, by deeper and richer understandings.
This project will go beyond existing comparative legal scholarship and examine legal decision-making as it occurs in the day-to-day routines of German and American prosecutors. By listening to how prosecutors talk about the law and by observing how they apply the law to the myriad of decisions they make in a criminal case, the project will build a thick description of the actual practice of criminal law in both countries. Through participant observation studies and interviews, I hope to capture the nature of the interrelationships between prosecutors, judges, defense attorneys, and other actors in the criminal justice system. It is through these day-to-day interactions that the meaning of the law is contested, shaped and constructed. Moreover, this project will seek to determine how the organization of prosecutor’s offices themselves influence the decision-making process and the practice of law.This project will go beyond existing comparative legal scholarship and examine legal decision-making as it occurs in the day-to-day routines of German and American prosecutors. By listening to how prosecutors talk about the law and by observing how they apply the law to the myriad of decisions they make in a criminal case, the project will build a thick description of the actual practice of criminal law in both countries. Through participant observation studies and interviews, I hope to capture the nature of the interrelationships between prosecutors, judges, defense attorneys, and other actors in the criminal justice system. It is through these day-to-day interactions that the meaning of the law is contested, shaped and constructed. Moreover, this project will seek to determine how the organization of prosecutor’s offices themselves influence the decision-making process and the practice of law.
While a visiting fellow at the Berlin Program of Advanced German and European Studies, I am planning to interview and conduct participant observation studies in a minimum of different offices in four to five different Länder in Germany. In addition, I will gather additional information through interviews with defense attorneys, legal scholars, and police officers about the German criminal justice system from different perspectives. I am in a unique position to undertake this project given that I have served in as both a prosecutor and a defense lawyer in the United States.
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