“France-United States: Two Different Ways to Reach Legal Truth” by French magistrate Antoine Garapon.     Print Email
Monday, 22 August 2011

Below is an illuminating theoretical piece by a French magistrate, relevant now because of the proceedings on the Dominique Strauss-Kahn case.   Undiscussed, however, is the presumption of innocence that defendants enjoy in the U.S. along with the burden of the prosecution to prove  guilt “beyond reasonable doubt” to a jury of laymen, who are in theory not prejudiced by pre-trial publicity, or any other facts about the case not presented under rules of evidence in the trial itself.   --European Affairs

Part of the unavoidable fall-out of the “DSK affair” is that it has strikingly highlighted the existence of a profound cultural gap between the American and the French approaches to justice.  Since these two legal systems rely on different conceptions of truth, they use different methods to arrive at a verdict designed to be considered fair in their respective societies.

In the U.S. system, the premise is that truth is brought to light by a struggle in which opposed positions (defense and prosecution) are cast in the roles of protagonists confronting each other. In France, in contrast, truth is deemed to emerge best as the result of an investigation. The French system (categorized as “inquisitorial”) is based on the premise that allegations only reveal a clear truth on the basis of thorough examination of official documents such as hearings, transcripts, analyses and expert reports,, enabling the state’s authorities to construct a plausible scenario that will convince judges. The process is linear, continuous – and lengthy since all imaginable hypotheses have to be dismissed or confirmed and the procedure may even require opening new investigations.

Ultimately, French legal truth is meant to be established on the basis of a quasi-Aristotelian “unity of meaning” that emerges from the investigation. In contrast, the American system (categorized as “adversarial”) arrives at “the truth” through the meticulously well-prepared drama of a public court trial. The judicial authorities, by themselves, are not supposed to investigate the validity of facts: their task is supposed to be a transparent oversight of a confrontation allowing a jury to designate the winner.

In the French philosophy of justice, truth is the fruit of deduction based on experts’ analysis of the evidence; in contrast, the U.S. system relies on the credibility that ordinary citizens give to witnesses.  It is a deadly serious form of theater in which the act of judging does not require any expertise. It is completely different in nature  (almost in epistemology) from the French emphasis on analyzing documentary evidence with a view to substantiating a logical scenario.  In the U.S., witnesses’ credibility and jurors’ personal intuition are the driving forces of justice.  In France, logic and deduction provide the necessary authority. [For legitimacy], the American system needs citizens; the French needs specialists.

One thing shared by both systems is the aim of providing a reconstruction of past events. But they do it  by different means.  French Investigations bring patient, intellectual effort to put together the pieces of the past; the adversarial system converts the events surrounding the crime into an event of its own and of a different order. In a theoretical way, the “actual facts” are subordinated to the courtroom struggle that results in a “truth” that emerges from a selection imposed on the “facts.” (The word “trial” actually comes from the French word, “triage,” meaning the operation of sorting out different elements to make a selection.)  So, in the adversarial procedure, the question of “truth” becomes a question of due process in seeing each side make its case. This insight into the American way,  taken to its extreme by French philosopher Michel Foucault, can be explained in these terms: “The goal “not to determine who is telling the truth but to ensure victory for the party that is the most powerful and who therefore gets to ‘be right’.” His analysis implies that “reaching the truth” is a notion that has only a relative value in American culture, where the real purpose is to ensure that the party who has proved more powerful and persuasive in this ritualized combat will end up as the one who is right.

In an American trial, the real “facts of the case” are meant to be eclipsed by blinding evidence or an overwhelmingly self-evident argument that functions like a knock-out punch in a boxing match. This why the items and testimony submitted to the court are called “evidence” – as in, “self-evident” to a juror’s convictions.

This approach also explains why so many trials do not come to a definitive end in the U.S.  The reasoning for a sentence or verdict is not and has never been a central element of the U.S. process. (Under old common law practice, the conclusions delivered after the trial – the verdict – usually simply named the winner without giving much detail about how the court reached the “truth.”) This approach also explains why so many U.S. criminal cases are settled by plea bargaining. This feature of the American system shocks many French people, who see it as a negation of the moral truth that should be inherent in determining the facts of a case and settling the truth. That is because the French “verdict” (“le jugement”) is supposed to emerge from a process that discovered the truth whereas the American “trial” aims to achieve justice through a fair fight.

These differing conceptions of truth also explain many subtle differences in the two systems. If a trial is conceived as a struggle or trial of strength, the accusations become a challenge for the defense, which must tackle the prosecution.  This dynamic applies to the DSK case: for an American lawyer, the main requisite is strategy (as in battle) whereas a French investigation is handled by magistrates prized for their ability to think and work methodically. The American procedure emphasizes the principle of contradiction; the French one stresses the need to preserve “the level playing field.” This procedural approach is designed to curb any unfair advantage for the state; the other is to intended to ensure that there is a fair competition between two opposing sides. In the U.S. system, publicity is inextricably linked to the process whereas in the French, system confidentiality is the watchword. (This French attitude should not be interpreted as tantamount to “secrecy” because “disclosure” of conflicting items is paramount from the outset in the magistrates’ investigation.) In the U.S. system, the “performance” is entirely public so as to protect the search for truth; in the French system, the authorities retain a degree of control over the narrative that is written as the process unfolds and ultimately is only disclosed to an audience [of judges] that is more limited and also represents the State system. That is why the media coverage of American court cases often gives rise to theatrical vocabulary – “plot,” “suspense,” “dramatic reversal,” and so on.  In France, the rhetoric used about the process of justice really could be better compared to religious discussions, in which words carry sacred overtones and criminal trials are described almost as a liturgy.

Therefore it is important to realize that while similar words are used to describe the French and Anglo-Saxon quest for justice, this similarity actually disguises a profound divergence about nature of truth.  The French believe in written depositions more than in oral testimony; they instinctively give more credence to the police and their reports than to private detectives hired by the defense. The French prefer the State to civil society; the opposite is true for Americans. These different conceptions of “courtroom truth” also stem from differences between the two societies:  a centralized body politic in France compared to a segmented nation built on immigration. The resulting approaches to power differ:  a great variety of communities and a federal, government that is readily mistrusted by Americans versus a centralized system symbolized by the State in France.

In the end, are these two systems ultimately isolated from each other and is everything relative? That disheartening idea should be set against the notion that societies communicate through their utopias and both French and American societies pursue a common one: the equality of all citizens before the law and the triumph of justice over passions or any “raison d’etat” that enables the authorities to ignore people’s rights. This ultimate communality means that we can and should pursue dialogue and not indulge in mutual opprobrium and anathemas.

Translated by Thalia Bayle

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