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This information is not necessarily given to the accused at standard actually employed is much more defense-
the same time. More than likely, the sequence would be oriented than that used for grand jury indictment. .. .
as follows. A suspect is questioned by the police and the [and] if the juge d'instmction is not reasonably convinced
examining magistrate. Once it is officially determined to of guilt . . .the Defendant does not go to trial. Generally,
characterize the person as "the defendant," he is so in- the burden of proof is clearly on the prosecution." 21
formed by the examining magistrate. He is further told A-6. Search and Seizure. When discussing the question
that he has a right to remain silent and the nature of the of search and seizure under French law, one must con-
charges against him. At this point, if the defendant wishes sider that done by the police force before the start of the
to make a statement, it may be taken. After the statement investigation, on the one hand, and that ordered by the
is given, a defendant is then informed of his right to investigating magistrate on the other. When a crime is dis-
counsel. covered in progress, a search and seizure may occur with-
c. Corlfessions.It has been noted that in the vast ma- out authority from a court. 22 However, in other cases,
jority of cases in France, defendants seem to "exhibit a French police may not search a private home without
quite spontaneous desire to confess all." 13 When one judicial authorization. 23 Once the case has reached the in-
considers the great number of confessions in French vestigatory stage, the investigating magistrate has the
proceedings, this statement would appear to be authority, within certain statutory limits, to conduct or
justified. 14 Article 428 of the French Code of Criminal have conducted compulsory searches and seizures. 24
Procedure provides that a confession, "like all elements of A-7. Pretrial Confinement. Although pretrial confine-
proof, shall be left to the free appraisal of the judges." As ment is considered to be an "exceptional measure," 25 it
many confessions are obtained by the police, French law appears that at least in serious cases it is the rule, rather
includes a mechanism to protect against coerced confes- than the exception, to place the defendant in preventive
sions. Fist, the law provides that a person beii detained detention. 26 The French law allows or permits pretrial de-
has a right to be examined after 24 hours of detention to tention for a period not to exceed four months, but the
determine his physical condition. The prosecutor may call examining magistrate has authority to extend the confine-
for the examination prior to that time. 15 Second, it is a ment for additional four month periods by an order which
crime under French law for a police officer to use "un- states the reason for the continued detention. 27 Even
justifiable force against a citizen" and discipline for mis- though a defendant may spend considerable time in
conduct may be imposed by the courts. 16 pretrial confinement, such detention is, as a rule,
A-4. Role of Counsel. After being informed of his right deducted from any sentence imposed at the trial. 28
to counsel, a defendant is entitled to be represented at in- A-8. Bail. Bail exists under French procedure upon giv-
terrogations or confrontations. 17 To assist counsel in rep- ing security (caution) to the court. 29 However, little use
resenting the defendant, the law provides that the attorney of bail is made. Ifpreventive detention is not deemed ap-
shall be entitled to review the dossier of the juge propriate, the defendant is not required to use the caution
d'instmctionat least 24 hours before any proceeding. 18 At system since he simply is not detained in the fust place. 30
such hearings, however, neither counsel for the state nor A-9.- The Judicial Process a. General. Even with the
the defendant has the right to present any arguments, ex-
extensive investigation by the magistrate, the judicial
cept when the court permits questions to be asked. 19 system in France moves with reasonable speed. Once the
Under French investigatory procedure the defendant may investigation is completed and the investigating magistrate
be required to reenact the crime. The philosophy behind
this requirement is that even the most accomplished liar
will have dficulty remaining consistent if forced to relive 21. hgh, supra note 1,at 23-24.
22. Proc. Code, Arts 56 et seq. Insome instances, this is limited to
the event in detail. Photographs of the enactment often
cases involving dklits which are punishable by imprisonment. hgh
are taken and then placed in the dossier. 20 supra note 1,at 18,n. 119.
A-5. Burden of Wf. Although there appears to be no 23. Proc. Code, Arts. 23, 76.
expressly stated standard of "presumption of innocence" 24. Id. at Arts. 94et seq., 151 et seq. For a discussion of search and
with respect to a defendant, it has been noted that "the seizure in general as the issue arises in French crimiaal procedure, see
G. Stedani & G. Levasseur, Procedure Penale (2d ed., Dalloz 1962).
25. Proc. Code Art. 137.
13. Anton, L'Instrction Criminelle, 9 Am. J. Comp. L. 441, 448 26. Id. at Arts. 138, 714 et seq. Article 138 limits detention to 5
(1960) (hereinafter referred to as Anton]. days for fust offenders who are charged with offenses for which punish-
14. See generally hgh, supra note 1,at 15-17;Proc. Code Art. 4. ment is less than 2-yearsimprisonment. See also Anton, supra note 13.
1s. Id. at 19;Proc. Code, Arts. 64 et seq. 27. Proc. Code Art. 139.
16. See French Penal Code, art. 186,and Roc. Code, Arts. 224 et 28. Penal Code Art. 24.
seq. 29. PTOC. Code Arts. 145 et seq.
17. Proc. Code Art. 118.Such a right may,of course, be waived by 30. Anton, supra note 13,at 454.For a discussion of bail, prob-
the defendant. tion, and parole in various European countries, see Glos, a study in the
'8. Id. Treatment of Crime and Law Enforcement in the United States as Corn-
19. Id. at Art. 120. pared to the European countries, 3 St. Marip L. J. 194-200 (1971)
20. Anton, supra note 13,at 452. [hereinafter referred to as Glos].