Page 221 - Law of Peace, Volume ,

Pam 27-161-1

has recommended trial, the dossier is forwarded to the ap-
offenses are tried by three judges and nine jurors. 35 In a
propriate court. The following summarizes the next step
case involving a crime, the inculpimust be adjudged guilty
in the process:
by 8 of 12 votes, i.e., a majority of the lay jurors must
Generally, there is no guilty plea in French criminal proceedings. .. .[It]
vote to convict. 36
is for the judge and jury to determine guilt, not the defendant. .. .At A-10. Appeals. Under French procedures, in those cases
the trial, after the charge is read, the defendant is usually the fmt party for which appeal or review is provided, 37 either the state
examined by the presiding judge. As is the custom for witnesses, he or the defendant may initiate the appeal or review. Except
'stands. In serious cases, with painstaking care, the presiding judge, who
has studied the dossier, interrogates the defendant, asking him to atXm for the most serious offenses, questions of law and fact are
or deny the truth of the statements contained therein, both his own and reconsidered by the appeals court (Cour d'Appel). After
those of others. The judge attempts to bring out the pertinent circum- reviewing the record as a whole (i.e., the dossier), as well
stances, both favorable and unfavorable. Questions by counsel for the as any additional evidence thought necessary, the Cour
defendant and civil party may be posed through the president of the d'Appel may substitute its judgment for that of the trial
court. After the defendant has testified, other persons are heard. French
procedure makes a distinction between witnesses and those who simply court. Obviously, this is a much broader review than is
give information. Persons affected with an interest, such as the defen- possible under the law as it exists in the United States. The
dant, the civil party, and those closely related to them by blood or appellate court apparently is permitted to substitute its
affinity, are not permitted to testify under oath--although they may give judgment because the great part of the evidence before the
statements and be questioned as though they were witnesses. As a trial court is written (i.e., the dossier) and hence the de-
result, these persons are not subject to prosecution for perjury. What
they say is viewed with scepticism, in light of their interest. Persons meanor of witnesses assumes less significance than it does
under the age of 16, and certain individuals with past criminal records, in American courts. If the appellate court substitutes its
are also prohibitied from giving testimony under oath. When permitted judgment, the decision is final, i.e., it is not remanded to
to take an oath as a witness, one swears to "tell all the truth and nothing
the trial court for it to enter judgment. 38
but the truth." Persons other than the defendant usually give their A-11. Sources of the Law. a. Under French law, as is the
testimony in narrative form, and are permitted to say whatever they feel
is pertinent, uninterrupted by the objections of counsel. . .. After all case with most civil law systems, legislation is the only
testimony has been received, counsel for the state, the civil party (if source of civil law. If that is so, what position do judicial
there be one), and the incube' [the defendant] deliver oral presenta- decisions play in the French legal system? It is quite clear
tions, which are frequently eloquent and moving. The summation (or the judicial decisions, or bbjurisprudence" as they are fre-
rbquisitorie) by the procureur [the prosecutor] ... is probably more quently designated in civil law countries, are not a source
restrained and judicious than its American counterpart. . . . Frequently,
as a result of confessions confumed beyond serious question by the of law, but are merely an authority in the civil law. This is
fruits of the exhaustive pretrial research reflected in the dossier, the consistent with the concept of the separation of govern-
defense counsel does not contest his client's guilt, but instead elaborates mental powers. Even an uninterrupted line of caseswhich
on the psychological, sociological, and economic factors which prompted has decided a particular point uniformly does not establish
the commission of the infraction. ... that jurisprudence as law. 39 Precedent is only one of
The judges are spedkally prohibited from basing their decision on
evidence other than that available at the trial. They may consider all several factors that may be taken into consideration before
matters within the dossier properly acquired, for it is felt that as trained a decision is reached, "an influence, of varying intensity,
professional magistrates, they can weigh the testimony and give it the but never legally imposed." 40 The influence that a partic-
value to which it is entitled. In aniving at their decision, the test to be ular jurisprudence may have upon the practicing bar and
employed is "inner conviction" (intime conviction) [of the guilt of the
judge varies, as might be expected, according to the
defendant]. 31
prestige of the rendering court.
Although it might seem that such a proceeding would be
b. Precedent. Notwithstanding the foregoing, jurispru-
quite lengthy, this generally is not the case.The thorough-
dence still eqjoys a privileged position because "the thesis
ness of the dossier preparation and the fact that the judge in support of which it may be cited in litigation has the
and counsel have studied it in advance of the trial combine
to make a French trial move through the various stages
35. Id. d Arts. 214, 231, et seq., 240 er seq.
without great delay. In some particular circumstances, a 36. See Patey, Recent Rdorms in French Criminal Law and
French trial may proceed without the presence of the de- Procedure, 9 Int'l and Cow. L. Q. 383 (1960).
fendant. 32 37. E.g., Crimes, which are tried by the Cour d'Assises or by
b. Types of Procedures. Under French law, offenses are recommendation of the Chambre d'Accusation which is similar to a
divided according to their seriousness, and each type of grand jury in the United States.
38. Proe. Code Arts. 496 et seq., 512 et seq., 546 et seq. and the
offew has its own procedure and court. Contraventions, penal CodeArts. 443 et seq.
or petty offenses, are tried by a single judge without 39. Article 5 of the Civil Code states that in deciding cases submit-
jury. 33 Delia, or intermediate crimind offenses, are tried ted to them, judges are forbidden to lay dorm general rules of conduct.
by three judges without a jury. 34 Crimes, or serious Further, the French Penal Code imposes forfeiture of office as a sanc-
tion against judges and judicial officers who "interfere in the exercise of
legislative power." Penal Code Art. 127(1). See also Carbonnier,
31. Pugh, supra note 1, at 26, 27. Authorities in Civil Low: France in The Role 4f Judicial Decisions and
32. Proc. Code arts. 410 et seq., 487, 544, 627 et seq. Doctrine in Civil Law and in Mked Jurisdictions 95-96 (J. Dainow ed.
33. Proc. Code Arts. 521 et seq. 1974) [hereinafter referred to as Carbonnier].
34. Id. at Arts. 381 et seq. 40. Carbonnier, supra note 39, at 97.