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. In Part I of our two-part series we explored the roads that can lead to a French trial. We now focus on trial.
A small category of cases where the punishment may exceed 10 years—generally consisting of murder or rape—are tried in a special court (cour d’assises) before a “mixed” jury of three judges and six lay jurors who deliberate together and must reach a supermajority verdict under specific procedures.
Unlike in the United States, most crime cases, including economic crimes, end up in a trial. They are tried before judges in the criminal section of the local district court (Tribunal de Grande Instance). We focus on the basic architecture of such trials, which differ fundamentally from their U.S. equivalents.
Criminal trials are run by judges. Before trial, the judges will have received and reviewed the entire investigative record. This is now the baseline record of the trial. This record may be full of evidence that a U.S. lawyer would immediately try to exclude, including documents such as witness interview reports that would be considered “hearsay.” But in France there are few “rules of evidence.” Criminal offenses may be proved by virtually any and all means.
A French trial is not an adversarial battle between opposing narratives, but more a judge-led inquiry that posits the question: does the record we have before us suffice to support conviction, or not?—as to which, of course, the prosecution and the defense may take different positions.
There is little cross examination. Because the “record” has already been assembled, witness testimony in general is limited, and cross-examination even more so. If the judges decide to hear a witness, they generally will ask the questions that they had in mind, and then will allow the parties—prosecutor, defense and victims—to ask further questions. But this process is usually short. An attorney attempting to dominate a witness through U.S.-style cross examination will be cut off.
There are few “battles of the experts.” In cases needing expert analysis (forensics such as ballistics or DNA matching, for example), the investigating judge may have appointed an expert, generally from an officially approved list. A defendant challenging the accuracy of the expert’s conclusion has traditionally faced difficulties because judges tended to take the view that an expert paid by a party can hardly be trusted. Increasingly, courts will now hear privately retained experts on a limited basis, although they are still referred to only as “witnesses” rather than true “experts.”
The “right to silence” is limited. During a trial, the judges usually turn to the defendant and ask for the defendant’s response to the evidence in the record. A refusal to respond will lead to a strong inference of guilt. A defendant is not, however, put under oath.
Much of the advocacy is oral. At the end of a trial, closing statements by the parties will often take what to U.S. practitioners seems like a disproportionate amount of trial time—often a full day of a trial that may last only a week. This is considered the heart of the trial. Written submissions are rarely made.
A judgment may be lengthy and detailed. At the end of a trial, the court will designate a date when the judgment will be announced, which occurs in open court. The court will ultimately release a written judgment, summarizing the court’s findings in detail. If the judges have found the evidence of guilt to be sufficient under the “innermost belief” standard they will convict, otherwise they acquit. The judgment will also impose sentence, for which there is no separate proceeding. If there are victim parties to the trial, their compensation from the defendant will be detailed. There is no tradition of a dissenting opinion.
An appeal is basically a new trial. Either the prosecution or the defense can appeal a judgment—very unusually to U.S. eyes, a prosecutor can appeal an acquittal. Victim parties can appeal the issue of their compensation. An appeal is in essence a new trial, where the facts as well as the law can be reviewed. The record on appeal will consist of the same record before the trial court together with the court’s judgment, and the parties are offered an opportunity to submit further information if needed to supplement or clarify the trial record. The appellate court (again consisting of three professional judges) will review the record and hold a new trial, following essentially the same procedures. If the appellate judges disagree with the prior judgment they will substitute their own judgment of guilt or non-guilt, and may well convict a defendant acquitted at first trial.
Supreme Court review is limited to legal analysis. A party that has lost an appeal may seek review in the Supreme Court (Cour de cassation). Unlike the Supreme Court of the United States, the French Supreme Court reviews all appeals court judgments from which a request for review is made, thus literally thousands of cases per year. This review is limited to legal principles only. In those cases where legal error is found, the case will be sent back to a different appellate court for further proceedings.
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.