State, Citizen, and Character in French Criminal Process
| Published date | 01 December 2006 |
| Date | 01 December 2006 |
| Author | Stewart Field |
| DOI | http://doi.org/10.1111/j.1467-6478.2006.00369.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 33, NUMBER 4, DECEMBER 2006
ISSN: 0263-323X, pp. 522±46
State, Citizen, and Character in French Criminal Process
Stewart Field*
This paper charts some major differences in the way in which evidence
of the defendant's character is treated in France when compared with
practice in England and Wales. Such evidence is more pervasive and
visible (especially in the most serious cases) and its relevance is more
broadly defined. Further, its presentation is shaped by a developed and
positive conception of the French citizen. In part, these differences may
be explained by differences in procedural tradition: the unitary trial
structure in France, the dominance of fact-finding by the professional
judiciary, and the rejection of general exclusionary rules of evidence.
But a full explanation requires French legal culture to be understood
in the context of French political culture. This reveals a very different
conception of relations between state and citizen to that of Anglo-
Saxon liberalism. As a result the legitimacy of trial is seen in terms of
the rehabilitation of the accused as a citizen of the state rather than
simply the punishment of a particular infraction.
COMPARATIVE STARTING POINTS: THE STRANGENESS OF THE
OTHER
At the start of a period of empirical research in France
1
a researcher was
following a murder case in front of the Cour d'Assises, the French criminal
522
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Cardiff Law School, Museum Avenue, Cardiff CF10 3AX, Wales
FieldSA@cardiff.ac.uk
I would like to thank the Journal's three anonymous reviewers for their helpful comments
on an earlier draft.
1 This was conducted with Andrew West and Alan Bradshaw between 1996 and 1997
and, although focused on the work of French defence lawyers, enabled us to
examine case-files, observe trials, and to follow and interview judges and prose-
cutors as well as defence lawyers. We followed significant aspects of 120 cases
(usually with detailed file-reading) and studied 30 lawyers on a extended basis in
three sites over 18 months of observation. We also conducted follow-up interviews
with twelve defence lawyers with criminal experience in four sites in 2001. Our
court that deals with the most serious cases.
2
Extremely drunk, the defendant
had punched and kicked to death a neighbour over a small debt. A very
striking incident happened on the first day. The President of the Court was
questioning the principal accused about his hobbies and leisure activities.
This was of itself quite strange to a researcher from the English common law
tradition given that, an hour into the questioning, the facts of the case had not
yet been raised. The President started to ask about the accused's membership
of a club for racing radio-contr olled model cars (les voitures te
Âle
Â-
commande
Âes). After a few moments discussing this seemingly trivial aspect
of the accused's life, the President commented, `we'll be hearing positive
talk about that later on.' At this point there are three exclamation marks in
the researcher's field notes to indicate his astonishment. What could be the
conceivable relevance of these activities to the assessment of this tragic
case? What could justify such an investment of time and resources? But sure
enough, later in the trial, two organizing members of the radio-controlled car
club appeared as witnesses in the highest first-instance criminal court. They
testified that the accused had behaved responsibly in arriving early to help
them set up the obstacles and stayed late to help them dismantle them.
What is described here ± the minute court-room examination of aspects of
an accused's life far removed from the direct facts in question ± is an
everyday taken for granted in the French Cour d'Assises. During that first
day of trial, before any evidence of fact had been introduced, the President
examined each of four accused in depth about the various stages of their
lives. The questioning took at least an hour for each, following a sequence
that represents the conventional pattern for such questioning: personal
development on remand or on bail, early family life, school, military service,
work, romantic or sexual relationships (la vie affective), life as part of a
couple (la vie en couple), their role as mother or father, episodes of health,
leisure activities and hobbies. The President would typically intersperse
questions to the defendant with summaries from the official file of the views
of friends, co-accused, lovers, family, employers, and social workers in
relation to the accused's life and character. Later several of those who made
statements would appear as witnesses to testify as to these matters.
Observing French criminal justice, what struck the researcher was that the
proceedings were not designed simply to discover whether the particular
individual committed the particular offence. The aim seemed to be to find
out in detail who did what, when, how, and why within the context of a set of
general norms about the life of an ordinary French citizen. These
523
thanks to the Economic and Social Research Council for funding the initial research
(Grant Number R000236361). For results, details of methods and discussion see S.
Field and A. West, `Dialogue and the inquisitorial tradition: French defence lawyers
in the pre-trial criminal process' (2003) 14 Crim. Law Forum 261.
2 Cases/SAF16. The coding system identifies particular cases from the study by
number and researcher initials and interviews by the code of the avocat (lawyer).
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School
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