We work frequently with U.S.-trained colleagues when their clients are confronted with a criminal threat in France. The differences between U.S. and French procedures are not without consequence, since advising a client on the best strategy depends on a deep understanding of how local procedures really work.
In our recent booklet, 10 Things U.S. Criminal Defense Lawyers Should Know About Defending a Case in France, we identified the principal areas where practices in France differ most fundamentally from their U.S. counterparts. Some of the most important of these differences are outlined below.
In common with the so-called “civil law” regimes in continental Europe generally, the French approach strikes U.S. practitioners as generally giving more power to judges and less to prosecutors; avoiding negotiated outcomes; having far fewer prescriptive rules of evidence; and depending more on “neutral” processes to determine facts than on an adversarial presentation of conflicting narratives.
And while trials are far more common in France than in the U.S. in the absence of a culture of guilty pleas, they are only rarely before a jury, and tend to be short.
Most Cases Are Developed by Prosecutors
Most criminal cases in France are investigated by prosecutors, with the help of the police. Prosecutors investigate crimes using procedures familiar to U.S. practitioners, including surveillance and dawn raids. They also have the power to compel witnesses to appear for interviews. The fruits of their investigation will be put into a formal file (dossier).
Defendant’s counsel usually has very little input in the fact development at this stage. If prosecutors decide to proceed with a case, this file is turned over to the court for trial, and at the same time made available to the defendant’s counsel.
Judges Investigate Complex Cases
For high crimes and in complex cases (including most international economic crimes), a judge leads the investigation. This judge is known as an investigating judge (juge d’instruction). (Both prosecutors and judges are considered members of the judiciary in France, and have had a common education that is different from that of practicing lawyers. Job changes between the judiciary and the bar are infrequent.)
Investigating judges also work with help of the police. They have broad investigating powers, and can order wiretaps, require the payment of bonds, and order asset freezes. Once a judge has strong or corroborated evidence that a person or company may be criminally responsible for the acts being investigated, the target is specifically designated as such (a status known as mis en examen), and thenceforth the target’s counsel has complete access to the file being compiled by the investigating judge.
Once a client is mis en examen, counsel can submit applications to the investigating judge which may include, for example, a request to appoint an expert or to inquire into an alternative cause for the acts being investigated—requests often made strategically since they are granted with parsimony.
Counsel advising a client in a judge-led investigation must also be patient: because the investigating judges are understaffed, the process can take years—sometimes as many as 10.
When the investigating judge has completed an investigation, he or she will ask the parties—prosecutor, victims, potential defendant—for their views on whether to proceed to trial or to dismiss the charges. The judge is not bound by any party’s views, and may cause a case to go to trial even if a prosecutor urges dismissal or vice versa. A judge’s decision to bind a defendant over to trial cannot generally be appealed.
In judge-led investigations, a special judge may order pre-trial detainment of the target.
Victims Can Be Actively Involved as Parties
A person who can show injury from acts being criminally investigated can obtain a status unknown in American law: they can be deemed parties civiles, which means they are an actual party to the criminal case.
As such, their counsel gets access to the file, they can be heard during an investigation and they participate at trial, at which they can seek and obtain compensation. They can even instigate a prosecution: in some circumstances where a prosecutor refuses to investigate a complaint, a victim can ask an investigating judge to do so.
Few Opportunities Exist for a Negotiated Outcome
A few opportunities exist to resolve a case without trial. For less serious crimes, a number of diversion programs exist. For more serious crimes, a procedure known as a CRPC allows the defendant to admit responsibility for the charges, but there is no tradition of negotiation over the sentence that will be imposed, and the procedure is little used for complex cases.
In 2016, the legislature introduced a new procedure, known as CJIP, applicable only to corporations accused of certain kinds of economic crimes. It emulates the American Deferred Prosecution Agreement by allowing a corporation to agree to payment of penalties and to supervision of its compliance programs, but avoid a criminal conviction.
Relatively few CJIPs have been negotiated to date, but we believe that the National Financial Prosecutor (whose office leads large economic investigations) is eager to develop the practice.
These and other practices during a criminal investigation are also explored further in our book chapter on the subject published annually in The International Investigations Review.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Antoine Kirry is a partner based in the Paris office of Debevoise & Plimpton LLP and a member of the firm’s litigation department.
Frederick T. Davis is counsel at Debevoise & Plimpton LLP based in New York and Paris. He is a former U.S. federal prosecutor and member of the Paris Bar.
Alexandre Bisch is an international counsel in the Paris office of Debevoise & Plimpton LLP and a member of the firm’s litigation department.