Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Friday, May 20, 2011

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.


Raised By Republicans said...

It's also worth noting that French judges are, themselves, considered agents of the state. While it MIGHT be a benefit that the accused can rely on the judge's investigation it could also be a horrible disadvantage, particularly if the state might have some conflict of interest with regard to the accused guilt or innocence (e.g. the accused is a prominent political figure).

Another feature of the French system is that there is a revolving door between the judiciary, the civil service and elected politicians. So it's possible that prosecutors and judges would both be sensitive political considerations just as they can be in the US.

I'll await LTG's comments.

The Law Talking Guy said...

What this article misses is that the core difference between the Anglo-American and French (Napoleonic/Civil) justice systems. Judges in the American setting are meant to be scrupulously neutral and independent, and the juries are the ultimate check on the system because they, not the professionals, determine guilt or innocence. While the Continental system combines most of the roles of the US prosecutor into the judge and there is no check on him from a jury. I believe that there are a great many problems with the US justice system, but that it is superior in almost every way to the Continental system. The key reasons are the independence of the judiciary from the prosecution and the check of the lay jury on the professional judge. Juries are awesome in the criminal courts. I can't stress this enough. The judges and prosecutors all think they're all guilty, and that's because 98% of them are at that stage. But the juries are not repeat players. They aren't jaded.

I also think the "perp walk" thing is nowhere near as bad as it is made out to be. There is something weird about the European custom of treating the accused as an honored guest. At his war crimes trial, Karadic would not shut up and the trial actually adjourned until he agreed to do so. In the US, he would have been jailed or even muzzled.

The role of the elected judge I think is misplaced. The problem is that judges are usually elected or appointed from former prosecutors. Judges once elected usually keep their offices. Judge Ito did.

Our system of choosing judges, for all its flaws, is far better than the continental system of selecting them from the ranks of the professional prosecutors. They don't even have law schools in Europe -it's the equivalent of a B.A. in Criminal Justice. So their judges are more like bureaucrats. We have a problem with politics in judging, but I prefer it to the inquisitorial system.

By the way, it is customary to say that the US system is "innocent until proven guilty" while the Continental system is "guilty until proven innocent." Both are somewhat overstated, but they represent a common understanding of how the processes differ.

The two-tiered system of justice is a big problem, although its source is often misunderstood. The problem really is that the justice system has gradually bent over backwards to level the playing field for indigent defendants. Not quite level of course, but a lot better than you might think. Doing so has built in a lot of procedural protections that, in the hands of a high-priced defense lawyer team, can shift the playing field decidedly against the state. The solution is not to remove the protections altogether, however.

I should also add that the grand jury is a good thing, not a bad thing. It requires a prosecutor to make a prima facie case to a neutral jury before proceeding. In the continental system, there is no such check. Here in California we don't use grand juries for the most part. We have a different system of "preliminary hearings" which are public and contestable, but can result in dismissal of charges unlike a grand jury (where a finding of "no true bill" can be revisited much more easily).

I could go on forever about this, but won't. It's fascinating subject, USWest, and while I'm not a criminal lawyer I do have a fair bit of knowledge about the system. By the way, the ability to be acquitted in a criminal court but found liable in a civil court is extremely rare, and notably so. It requires a jury to really get the "reasonable doubt" standard versus the "preponderance of the evidence" standard or engage in nullification. Usually a jury that thinks a defendant guilty will convict.

The Law Talking Guy said...

I should add that one of the prime causes of the American revolution was the move by Britain to impose continental-style justice in the colonies. Judges beholden to the crown-appointed colonial governor alone for their salaries and appointment with extensive powers of detention and inquisition, and no juries.

USwest said...

All fascinating. It's really this aspect of things that interests be about the DSK case.

What the article also misses, and that LTG points out, is the relatively low standard that the defense must meet in the US. In the case of DSK, all they have to do is raise enough issues to get "reasonable doubt". That makes it somewhat more fair in the "accusatory system". So the Defense doesn't really need to "prove" DSK's innocence. This, by the way, is what happened in the OJ case, and many others like it.

The article doesn't' address the jury system really. In France he'd get a three judge panel with no jury, correct?

LTG, what would happen in the continental system? I am assuming they would have to "prove" innocence and that the standard would this be higher.

Good point about the ability to corrupt judges in the continental system.

I do get bothered by the heavy handedness of some prosecutors who want to pad their resumes. I have a friend who is being subjected to this right now. And she initially greed to a plea bargain just to make it go away. However, when she turned up before the judge to officially accept the plea bargain, the prosecutor totally changed tact and asked for the maximum penalty, which was not part of the deal. So luckily, the judge gave my friend the opportunity to go to a jury, which she will do. She has been wrongly accused of a misdemeanor crime that resulted from a nasty divorce and an abusive former husband. I am please that she chose to go to jury trial. I think her chances there are much better than she initially thought. She is concerned however, because she wasn't impressed by the look of the potential jury pool. She said they all looked like drugged out losers.

Raised By Republicans said...

Great analysis LTG! Thanks! And this is a great topic, US West!

US West and LTG, correct me if I'm wrong about this but the impression I get from LTG's comment is that US West's friend would be screwed in the French system. If a judged decided, for whatever reason, to void a deal she had made with the prosecutor, there would be no check on that authority other than whatever opportunities for appeal exist in the French system.

Raised By Republicans said...

Slightly different issue... I've read in a number of sources about French judicial administration etc that one of the features of the French system is that most of the senior civil servants, senior judges and politicians are graduates of Grandes Ecoles in Paris (a cluster of elite universities - the French equivalent of the Ivy League). It would be as if to be a senior official there were an unofficial requirement that you come from one of a small handful of universities. When this common background is combined with a practices of people moving easily back and forth between civil servant jobs, judicial posts, elected positions and lucrative private sector jobs, you can get a very inbred public elite. As US West pointed out, in France, celebrities get special treatment and this practice could be part of why that happens.

USwest said...

You've nailed it. Sarkozy is an odd exception for president because he didn't go to ENA. He did go to Sciences Po in Paris, but failed to graduate- another exception for a French Pres.

There is definitely a cast system in France. But we have one as well. Princeton, Harvard, Yale. The difference is there is still more social mobility here than in France and there is a greater effort to let less advantaged students int our Ivy Leagues..

USwest said...

You've nailed it. Sarkozy is an odd exception for president because he didn't go to ENA. He did go to Sciences Po in Paris, but failed to graduate- another exception for a French Pres.

There is definitely a cast system in France. But we have one as well. Princeton, Harvard, Yale. The difference is there is still more social mobility here than in France and there is a greater effort to let less advantaged students int our Ivy Leagues..

Raised By Republicans said...

I think LTG posted about the Supreme Court once that they all come from either the Ivy League law schools or Stanford. We've had a run of Presidents lately from the Ivy League but we've had a number of presidents since the Civil War from outside that clique of schools. Off the top of my head, Ford went to the U. of Michigan (a public university - gasp). Benjamin Harrison graduated from Miami University (Ohio). Garfield went to Hiram College, a small, modest private college in Ohio. Reagan went to Eureka college, a similar school in Illinois. Nixon went to Duke Law School an elite school to be sure but outside the usual circle and he went to Whitier College, a small college in California for his undergraduate. Harding attended Ohio Central College which no longer exists. Grant, Eisenhower and Carter attended military academies (absent extreme heroism military careers in the United States are rarely seen as pathways to the super elite club). Cleveland, McKinley and Truman never graduated from college at all and never attended anything like a prestigious school.

USwest said...

Look at Congress.
Consider presidential candidates.
See where we are trending. It helps to have an inside line. And the Old Boys club still operates here as well. It's just not as open as in the past.

We are usually about 10 years ahead of France in social movements. Le Monde is now running articles about sexism in France and there are small demonstrations. So the DSK affair has raised new awareness that is leading to some form of national dialog.

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