Guilty Pleas in an Inquisitorial Setting – An Empirical Study of France
| Date | 01 September 2018 |
| DOI | http://doi.org/10.1111/jols.12121 |
| Published date | 01 September 2018 |
| Author | Laurène Soubise |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, NUMBER 3, SEPTEMBER 2018
ISSN: 0263-323X, pp. 398±426
Guilty Pleas in an Inquisitorial Setting ±
An Empirical Study of France
Laure
©ne Soubise*
Anglo-American guilty pleas have inspired criminal justice reformers
in many inquisitorially based systems in recent years, in response to
caseload pressures. In France, two different procedures based on the
defendant's confession were introduced in 1999 and 2004 respectively:
an out-of-court disposal (the composition peÂnale) and a prosecution
pathway (the comparution sur reconnaissance preÂalable de culpabilite ).
Basing its analysis upon direct observations and interviews with
French public prosecutors, this article examines the impact of these
procedures on the French criminal justice system and its actors.
Rather than a move from an inquisitorial to a more adversarial system,
data collected for this study show a bureaucratization of the French
criminal justice process. The role of public prosecutors is changing
from that of judicial officers to caseload managers who have delegated
part of their workload to less qualified staff for efficiency purposes.
INTRODUCTION
The opportunity for defendants to admit their guilt before a judge and
thereby avoid the need for a trial is a familiar feature in criminal justice
systems founded on the adversarial tradition, such as England and Wales. By
contrast, systems derived from the inquisitorial model, such as France, have
not historically attached such weight to a defendant's admission. Adversarial
and inquisitorial models of criminal procedure
1
encompass two different
398
*Warwick Law School, University of Warwick, Coventry CV4 7AL, England
L.Soubise.1@warwick.ac.uk
I am grateful to all participants in this study for their time and interest. I would also like to
thank Jacqueline Hodgson, Juliet Horne, Kevin Hearty, and Claire Saas for their helpful
comments on earlier drafts of this article, and the anonymous reviewers for their valuable
and constructive feedback.
1 These categories are not conceived as describing existing systems of criminal
justice, but represent useful ideal-types which explain fundamental differences
between common law and civil law criminal procedure traditions.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
procedural cultures: the inquisitorial culture conceives the criminal justice
process as a neutral investigation conducted by impartial state officials in
order to determine the truth, whereas the adversarial system characterizes
criminal procedure as the adjudication of a dispute between two parties (the
prosecution and the defence) by a judge acting as a passive umpire. Guilty
pleas fit more naturally within the adversarial model given the principle of
party autonomy in defining the scope and terms of the dispute. The
recognition by the defence that the prosecution is correct removes the need
for each party to present evidence in support of or against a finding of guilt
before the judge.
2
Conversely, an admission of guilt by the defendant can be
an important element in the decision of the judge in the inquisitorial model,
but it might not provide a complete version of the truth, which is only to be
determined by the judge.
Negotiations over pleas between defence and prosecution are even more
alien to the inquisitorial ideal-type. Two forms of plea bargaining can be
found in England and Wales: charge bargaining or fact bargaining. Charge
bargaining typically consists of the defendant agreeing to plead guilty to a
less serious offence than the prosecution originally proceeded upon. Alter-
natively, when the defendant faces several charges, an agreement to plead
guilty to one or some of them can result in the discontinuance of others. Fact
bargaining does not involve a change in the charge faced by the defendant,
but an agreement between the prosecution and the defence on a factual basis
acceptable by both sides. For instance, a defendant might agree to plead
guilty to assault on the basis that she slapped the victim, but did not punch
her as asserted in the original prosecution version of events. This can have an
impact on the perceived seriousness of the offence and thus on sentencing.
Whereas such negotiation is natural in the dispute model of an adversarial
system where the parties can shape the remit of the passive decision maker, it
is unacceptable in principle in an inquisitorial system where the truth cannot
be bargained with or compromised. Nevertheless, reforms in the last two
decades have introduced new procedures based on an admission by the
suspect/defendant in criminal justice systems rooted in the inquisitorial
tradition.
399
2 However, testing of the evidence at trial is at the very heart of the adversarial
system. Yet, with guilty pleas:
there is no requirement on the prosecution to prove its case by the introduction of
admissible and persuasive evidence; there are no restrictions on what might
count as `evidence'; no witnesses are produced to give evidence (indeed, none
may be available); there is no independent tribunal of fact; there is no settled
procedure under which it should operate (or none that judges and practitioners
seem able to follow); and there is no public trial or other independent decision-
making tribunal.
M. McConville and L. Marsh, Criminal Judges: Legitimacy, Courts and State-
Induced Guilty Pleas in Britain (2014) 25.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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