Vive La Difference

This post was inspired by an interesting interview published in Le Monde with Arthur Dethomas, a French lawyer who also practices in New York discussing the difference between the criminal justice system in the US and France. What I like about the interview is that he doesn’t pass judgment on which system is better. He simply presents the differences. It thought it would be interesting to share what he said here.

The first difference between the US and France is how charges are brought against the accused. In the US, we accumulate charges. So in DSK’s case, there are 7 charges against him, each which comes with a set punishment. So the accused must counter each charge. And for those changes for which he is found guilty, the punishments accumulate. Therefore, prison sentences are longer. In France, they try the accused for the single most serious charge, the one that will result in the harshest punishment. What Dethomas doesn’t address is if after the trial for the severe charge, the accused can be tried on a different, lesser charge. So if anyone knows, share!

He also points out that sex crimes are addressed more aggressively in the US than the France because we have a culture that requires that. This has less to do with the law than with culture values and traditions.

The next question he addresses is about the heavy-handedness used by American authorities (the violence of the system) and if this is something of a culture shock or clash between the US and France. Mr. Dethomas says that there is cultural difference that rests on notion of the “perp walk”. In America, we tend to display the accused when he/she is brought before the judge. In France, the accused is not shown when brought before the judge. It is not really correct to say that the American system is more or less harsh than the French system, but that the American system is more visible, and therefore, appears more harsh. Mr. Dethomas says that the French system is equally harsh in its own way. It incarcerates, denies people liberty, places people on probation or under guard, etc.

Next, Mr. Dethomas says that the idea of “innocent until proven guilty” is the underlying principle of both systems. However, because there is less regulation of privacy in the US (he emphasize use of photos and film here), the system exposes the accused. And to assume that you treat celebrities with more discretion would be viewed by the American system as “special treatment”.

In France, the judge determines the charges against an accused. The judge uses the powers vested in him/her by the state to lead an investigation and to determine which charges to bring based on that investigation. One benefit of the French system is that is levels the playing field for the accused. You don’t need a lot of money to hire private investigators and high-end lawyers.

In the US, he says, state prosecutors determine the charges and the defense team must argue before a judge why certain charges should be dropped. The prosecutor, or the state, has a great deal of power. So in effect, the accused appears to be very “alone” in facing a system that is geared toward accusation. However, Dethomas doesn't mention the role of the Grand Jury (or that part got edited out). In the DSK case the prosecution laid out a set of charges before a grand jury, not a judge. And it was up to the grand jury to determine which charges were viable and which were not based on testimony from the accuser. The defense didn't even get to argue.

Because prosecutors in many jurisdictions, New York being one of them, are elected, they reap political benefits from successful prosecution, especially if those are high profile cases. This isn’t the case in France.

Lawyers in the US have the right/duty to run independent investigations. The prosecutor must share with the defense all evidence (called “discovery”) that their investigation of the CRIME turns up. That does not extend to investigations of witnesses. So to get an edge, they investigate witnesses and try to discredit them. That said, the defense team has to “protect” the accused from media attention, and from the possibility of civil suits that can be brought against the accused after trial. The French don’t have this type of system, where you can be found innocent of the crime in criminal courts and then be tried in civil courts. (Frankly, I don’t think we should allow this either. It’s a mere technicality to say that you aren’t being tried twice for the same crime just because the charges and type of law change.)

When asked if there is a two-tiered system in the US, one for the rich and one for the poor, Dethomas agrees that those with more means get a better quality defense. However, France also has a two tiered system, he says－one for celebrities and one for everyone else. In American, DSK is being treated as a common prisoner. In France, he’d get special treatment.