Comparing the criminal justice system of two or more countries can lead to valuable insight of your home nation as well as the nation(s) used in comparison. This short paper looks at the similarities and differences between the criminal justice systems of France and the United States. The hope is that it will provide a deeper understanding of how civil and common law systems approach the investigation and adjudication of crime.
II. Court Structure
No criminal justice system could exist without courts. Courts are the main institution involved in the legal settlement of criminal disputes. While the fundamental goals of courts across the world are similar, how they are established and organized differs greatly.
Courts in France are divided between administrative courts and judicial court. Administrative courts hear cases that involve disputes between government departments and agencies. Judicial courts, on the other hand, hear civil and criminal cases. France has a unitary court system which means regardless of the jurisdiction the courts are subject to one authority. Indeed, all courts in France answer to the Court of Cassation. The Court of Cassation ensures that all lower courts are in compliance with the law. Moreover, like the Supreme Court in the US it has jurisdiction over all lower court cases. But it is not an appeals court. If it finds fault in a case, the case will be retried before a new lower court (Pugh 1962). Unlike the US Supreme Court, however, its decisions are not binding on the new trial court though they have persuasive influence (Pugh 1962). Moreover, in making its decisions, the Court does not determine the facts of a case but rather reviews the case to see if the law has been applied correctly. The Court of Cassation is consists of six departments, and each department is headed by a presiding judges (Frase, 1990). Below the Court of Cassation are the Courts of Appeal, which are also known as Courts of Sessions. France is divided into 101 departments or regions; every department in France has its own Court of Sessions. Courts of Sessions are not permanent courts, usually meeting for two weeks every three month before a panel of three judges and a jury of nine citizens drawn by lot (Hodgson, 2005). Courts of Session have appellate jurisdiction over all criminal cases of other Courts of Session (as explained below) and all lower courts (Hodgson, 2005).When not performing its appellate duties, Court of Sessions are also the highest criminal trial courts. Courts of Session hear the most serious crimes and indictable offenses before a panel of three judges. The next level of courts below are known as the Correctional Courts, Correctional Courts has jurisdiction to hear misdemeanor and less serious felony charges with punishment between six months and 10 years. Correctional Court cases are heard before a panel of three judges (Tomlinson, 1983).The lowest criminal courts in France are the Police Courts. Police Courts have jurisdiction to hear cases involving petit-misdemeanors and violations. Police Courts cases are heard before a single judge and punishment for those found guilty consists entirely of fines.
Similar to France, the US criminal justice system is made up of multiple courts. By contrast, however, the US system is not separated by administrative, civil and criminal cases but rather by national (federal) and state jurisdiction. Most courts in the US have jurisdiction to hear any type of case. In the US, both federal and state courts have a similar pyramid structure to France with a single court at the top and an increasing number of courts at the base. At the federal level, the United States Supreme Court (USSC) stands at the top. The USSC, which was established by Article III of the Constitution, has appellate jurisdiction to hear all cases and controversies under the Constitution (Barlow, 2000). The USSC has limited trial jurisdiction to hear cases involving ambassadors, public ministers and where the state is a party. Cases to the USSC are heard by a panel of nine justices. USSC hears cases that involve every aspect of American law including civil, criminal and administrative cases. The USSC is the “court of last resort” not only for lower federal courts but for state court cases as well. Below the USSC are the thirteen United States Courts of Appeal (circuit courts) which are organized geographically to cover all federal cases in the 50 states, the District of Columbia and those cases involving just the national government. Generally, circuit court cases are heard by a panel of three judges. In specially circumstances, however, a case may be heard “en banc” or before all the judges of a particular circuit (Barlow, 2000). The lowest courts on the federal level are the US District Courts. These are the trial courts of the national court system. Every state has at least one district court. As mentioned, the state court system also has a pyramid structure. It also is almost the mirror image of the federal system. In most states, the highest court is the State Supreme Court. Similar to the USSC, the State Supreme Court is the “court for last resort” for all state and local legal controversies including criminal and civil actions. While most State Supreme Courts have discretion to decide which cases they will hear, unlike the USSC, however, most State Supreme Courts only have appellate jurisdiction. Typically, blow the State Supreme Court, there is at least one State Court of Appeals which is required to hear appeals from the state trial courts. In bigger states, such as California, State Courts of Appeal are organized geographically, just as on the federal level, to hear cases within their region. Lastly, all states have vast system of trial courts. Unlike at the federal level, the state trial courts are often separated into specialties. For example, juvenile cases will be hear by a juvenile court, minor crimes and misdemeanors will be heart by district courts (courts of limited jurisdiction) and major crimes or felonies will be heard by superior courts (courts of general jurisdiction).
In both France and the US, the gateway actor for the criminal justice system is the police officer.
In France police are separated into two main law enforcement agencies namely, the National Police and the “Gendarmerie,” and a few smaller local police agencies (Frase, 1990). The National Police, which are part of the Ministry of Justice (MOJ), are responsible for law enforcement and criminal investigations with the cities and major urban areas (Frase, 1990). Alternatively, the Gendarmerie, who are under the authority of the Ministry of Defense, have jurisdiction over smaller urban zones, towns and rural areas as well as airports, military installations and harbors (Frase, 1990). There are smaller local police forces such as the municipal police. These forces, however, are limited to patrolling and crime prevention activities in the jurisdiction they are located in. They are not authorized to conduct criminal investigations and are normally not armed. While the two national police agencies are separate institutions, the have a common goal which is the enforcement of French criminal laws and the investigation of criminal activity. The key difference being the geographical area of jurisdiction and in some cases the subject of investigation. For instance, the Gendarmerie will handle any case involving the military, even if it occurs in a major urban area. Unlike in the US, neither the National Police nor the Gendarmerie are technically not authorized to investigate crimes on their own or based on their own determinations. Rather, criminal investigations are supervised and directed by a member of the judiciary, namely an investigating magistrate or a prosecutor (Hodgson, 2010). Accordingly, in France such important decisions such as who to target for an investigation, how and when an investigation with proceed and when there is enough evidence exists to justify an arrest are normally made by the investigative magistrate or prosecutor rather than the police officers. The activities of police officers in France are regulated by the Criminal Procedure Code (Hodgson, 2010).
There is a similar division of labor for police officers in the US. In the US, however, the number of police agencies is much more numerous than in France. As with the courts, police in the US there are two broad levels of police, namely federal police and state or local police. At the federal level, most law enforcement duties are carried out under the authority of the Department of Justice (DOJ). Accordingly, like French police, nationally most police activity occurs under the direction of or in close cooperation with a United States Attorney. The main national police agency is the Federal Bureau of Investigation (FBI). The FBI has general jurisdiction over federal crimes. Accordingly, any crime not assigned to other federal police agencies will be investigated by the FBI (Potter, 2013). Additionally, there is wide range of federal law enforcement agencies that work alongside the FBI. Most of which specialize in policing specific criminal activity. For example, the Drug Enforcement Agency (DEA) is also under the authority of the DOJ but its primary duty is the enforcing US drug laws at home and abroad. Since most crime is local, the majority of police agencies in the US are a creature of state and local authority. To be sure, the authority of and local police agencies is governed by the state, county or city that they are located. Unlike in France or at the federal level, local police agencies are generally independent of the prosecutor. While they often work in cooperation with prosecutors, local police have their own authority to initiate a criminal investigation as well as power to administer and supervise the investigation as they wish. This includes determining how to investigate a case, which and how much personnel will be assigned to an investigation and when a suspect should be arrested. The most common types of local police agencies include state police, sheriffs and city police departments. Like the federal level, there is much overlap in the responsibilities of the various police agencies but most police work is carried out by the city police department. State police operate under the authority of the state governor and authorized to enforce the criminal laws of the state. Typically, state police duties include enforcing state traffic laws, providing security to state personnel and buildings and patrolling those areas that are not covered by specific county or city criminal laws. Sheriffs normally have jurisdiction to enforce county criminal laws and assisting the county court in performing its duties such as serving warrants, providing inmate transport and securing the courthouse and courtrooms. Lastly, the city police department is tasked with enforcing the criminal laws of the city in which it is located. Since city police departments are the closest law enforcement agency to the people, the majority of cases that enter the criminal justice system do so through the city police department.
In France, the judiciary is has two major responsibilities in the criminal justice system, namely during pre-trial investigation and during trial adjudication. Investigative magistrates are special judges who oversee the investigation of the most serious crimes. Unlike a French prosecutor, they are part of the independent judiciary rather than the MOJ (Frase, 1990; Tomlinson, 1983). Cases are referred to the investigative magistrate by the prosecutor. An investigative magistrate is responsible for the gathering of all relevant information in a criminal case and preparing a detailed case file (Frase, 1990). In accomplishing his duties, the magistrate may make use of police personnel to obtain evidence, interview victims, conduct surveillance and arrest suspects. Investigative magistrates can also order the detention of suspects awaiting trial (Hodgson, 2010). If sufficient evidence of criminal activity is obtained during the investigation, the magistrate will refer the case to the relevant court for further action. If no evidence of a crime exists, then the magistrate can dismiss the case. Once the case file is delivered to the court, a sitting or trial judge will take over the control of the case. In contrast, to American judges, French trial judges are active participants in court proceedings. French trial judges have duties similar to the judge, prosecutor, defense attorney, and jury in American criminal cases. To be sure, they examine witnesses, determine the propriety of evidence, render decisions and impose the relevant penalty on those found guilty. Judges to the Court of Cassation are appointed by the President upon the recommendation of the judicial bar association known as the High Council of the Judiciary (Pugh, 1962. Lower court judges are chose from the ranks of those students that complete specialized training at the National Center of the Judiciary.
In the US, the role of the judges in the criminal justice system is to serve as an unbiased referee presiding over court proceedings. In carrying out his duties a judge is responsible for: maintaining order and management of the court and court proceedings; determine the legality of evidence and whether it can be used by either party to the dispute; instruct the jury during a trial about what laws apply in the case and the standard that must be used in coming to a verdict; impose punishment on those convicted, and lastly determine the face and render a decision in the case if the trial is heard without a jury (Barlow, 2000). At the federal level, USSC justices and federal judges are appointed by the President with the “advice and consent” of the Senate, serve for life. At the state level, judges are either appointed by the governor or legislature or court commission or elected by popular vote.
Perhaps the actors most central to the effective administration of the criminal justice system are the attorneys charged with litigating the criminal cases, namely the prosecutor and defense attorney.
In France, the criminal justice system is administered by the MOJ, the Justice Ministry and its staff of prosecutors. In addition to the management of the criminal justice system, the Justice Ministry is also responsible for preparing and advocating for criminal justice policy and legislation, managing the nation’s juvenile and adult prisoner population (Hodgson, 2005). A large portion of the work of prosecutors, however, is preparing cases for trial and arguing those cases in court (Hodgson, 2010). In preparing cases, prosecutors are afforded a large degree of control over the police in performing investigations. To be sure, prosecutors must be notified immediately when a person has been arrested (Hodgson, 2005). The purpose of the notification is to allow the prosecutor to ensure that the person in custody has been afforded their rights under the law and to make a determination of the status of the case. If the prosecutor decides that no further action should be taken, then the case will be closed (Hodgson, 2010). On the other hand, if the case is determined to require more attention, the prosecutor will decide which charges should be filed, whether further police investigation is needed and how police personnel should be deployed in obtaining more information. The resulting activity results in a case file. Once a case file is completed, it will be forwarded to the appropriate court for a determination of guilt or innocence. If the case is serious enough, the prosecutor will transfer the case to an investigative magistrate for consideration and recommendation. If the prosecutor disagrees with the investigative judge’s recommendation, they may asked for further consideration or provide their own recommendation for the disposition of the case (Hodgson, 2010). In contrast to the US prosecutor, at trial the French prosecutor’s role is not focused on arguing the merits of the case, which have already been determined in completing the case file, but on verifying information documented in the case file.
In the US, at every level of government administration there is specific office responsible for carrying out the state’s adjudicative duties in the criminal justice system. At the federal level, this is accomplished by the Attorney General of the United State and the DOJ’s staff of prosecutors known as United States Attorneys. The US Attorney General and the DOJ is in many ways similar to the French Minister of Justice and the MOJ. Additionally, each state has its own attorney general and DOJ responsible for the investigation and prosecution of crimes under state law. Just as with police in the US, the majority of criminal prosecutions are brought by the local attorney general, who is more commonly known as the District or City Attorney. Regardless of the jurisdiction, as in France, US prosecutors at any level are responsible for investigating crimes, assistance assistance to law enforcement, preparing cases for trial and prosecuting those cases in court (Barlow, 2000). In carrying out these duties, prosecutors often provide police with legal advice and their recommendations on how to proceed but the decision on whether to follow their advice is left to the police. Once a suspect is arrested, however, most if not all of the key decisions of the disposition of the case will be made by the prosecutor. Indeed, the role of the prosecutor is fundamental to the further processing of the case after arrest. Prosecutors determine which suspects will be formally charged, what charges will be filed and the parameters, if any, by which a case can be resolved without a trial. Like their French counterparts, the central role of the US prosecutor at the beginning of the criminal justice process also requires that they consider all the facts objectively and consider facts that are helpful to the suspect as well. Despite these responsibilities, the prosecutor is still the “public’s attorney” in criminal cases and therefore must also take into account the general public in making their decisions.
2. Defense Attorneys
The defense attorney has a very limited role in the French criminal justice system (Hodgson, 2008). Unlike in the US, there are neither many attorneys who specialize in criminal law nor is there a dedicated public defender system. Accordingly, the majority of criminal defense cases are taken by lawyers in private practice who either take on criminal cases in combination to cases in other areas or by recently licensed lawyers as part of their discipleship before they can take on their own cases (Hodgson, 2008). To be sure, except for being a licensed lawyer, there are very few professional requirements needed to take on criminal defense cases. Moreover, there is also little prestige in having criminal clients (Hodgson, 2008). In France, defense attorneys are not considered, as they are in the US; do not share a common bond with the prosecutors (or judges) as members of the same legal profession. Whereas prosecutors and judges are considered part of the same class of legal professionals working for the public interest; defense attorneys are seen as inferior, partisan, only out for their own interests and untrustworthy (Hodgson, 2008). The lowly professional culture of the defense attorney is reflected in the limited effect they have in criminal cases. On the one hand, criminal investigations are dominated by the prosecutor or investigative magistrate. On the other hand, the trial is controlled by the trial judge. Under these circumstances, the defense attorney’s best place to impact the case is providing mitigating evidence to the criminal file during the pre-trial stage rather than fighting the judge at trial (Hodgson, 2008). Indeed, rather than proposing an alternate theory to the case at trial, as done in the US, French defense attorney are more effective in affecting how the case is seen in the eyes of the investigating authority before it get to trial by presenting them with favorable evidence and information.
As a primary function of the adversarial system, the role of the defense attorney in the US is much more active than in France. First, the job of the defense attorney is to do everything in their legal power and experience to assist their clients in resolving their cases. Whether this means negotiating a plea agreement, going to trial or filing an appeal on only focus for the defense attorney is defending the accused. To accomplish this, defense attorneys are involved in every aspect of the case from after arrest including, the investigation stage, trial stage and post-trial stage. Unlike, in France, the defense attorney’s “partisanship” is supported by the prosecutors, courts and the public. To be sure, a defense attorney that does not exhibit the requisite “zealousness” in representation may be deemed ineffective. From a professional standpoint, defense attorneys are considered the same as prosecutors, both being attorneys with the same training.
While the goals of the criminal justice system in France and the United State are similar the ways in which they go strive to accomplish them are vastly different. This is especially in regards to the roles of the judge, prosecutor and defense attorney. Nonetheless, the similarities between the two systems are telling as both move towards a model that better protects the rights of the accused through the reliance on criminal procedure regulations and the use of jurors chosen from the community.
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