McKillop-1997-Anatomy of A French Murder Case

Anatomy of a French Murder Case
Bron McKillop
The American Journal of Comparative Law, Vol. 45, No. 3. (Summer, 1997), pp. 527-583.
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Wed Oct 31 16:59:45 2007
BRON MCKILLOP
......................................... 528
1. INTRODUCTION
2. THEFACTS
OF THE CASE ............................... 529
3. THE ~ S T I G A T I O N.................................... 530
(a) By the gendarmerie ................................ 530
(b) By the investigating judge fjuge d'instruction) ...... 534
(i) In relation to the facts (les faits) ............... 534
(ii) In relation to the defendant's personnalite' ...... 541
(iii)Further investigation ........................... 543
........................................... 544
4 . THE DOSSIER
. .........................
547
5. THE COMMITTAL
FOR HEARING
.......................................... 548
6. THE HEARING
(a) The jury panel ..................................... 548
(b) Selection of the jury, call-over of witnesses. and
reading of the committal judgment .................

(c) Interrogation of the accused and the witnesses ......
(d) The addresses ......................................
(e) The judgment ......................................
(f) The civil claims ....................................
(g) The record of the hearing ...........................
BETWEEN THE DOSSIER(AS THE RECORD
7. THE RELATION
..............
OF THE INVESTIGATION)
AND THE HEARING
(a) Statements 1evidence by lay people ..................
(b) Records /evidence by the gendarmerie and the
police ..............................................
(c) Reportslevidence by the experts ....................
8. APPEALTO THE COURDE CASSATION
....................
9 . COMMENTS
ON THE CASEFROM A COMMON
LAW
...........................................
PERSPECTIVE
(a) The relative importance of the investigation ........
(b) The centrality of the dossier ........................
(c) Control of the investigation by legal professionals ...
(d) The garde a vue ....................................
(e) Re-enactment and confrontation ....................
550
551
558
560
560
561
562
562
563
563
563
564
564
565
567
569
570
BRONMCKILLOPis a Senior Lecturer in the Faculty of Law. University of Sydney.
528
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. 45
(0 Official experts ..................................... 572
(g) Civil parties ....................................... 573
(h) The position of the accused ......................... 575
(i) The accused as a source of information.. ....... 575
(ii) Right to silence ................................ 576
(iii)Presumption of innocence ...................... 578
(i) The personnalite' of the accused. .................... 579
...........................................
582
10. CONCLUSION
There is no shortage of writing in English about Continental European criminal justice systems, particularly the French system.
These systems have been much described, characterized,l demythified2 and converted into models3 by academic writers.4 They have
1. The characterization of Continental criminal justice systems as "inquisitorial"
continues to be common, particularly when contrasted with the "adversarial" or "accusatorial" anglophone or common law systems. Other noteworthy characterizations
are as "inquest," "official inquiry," "investigatory," ujudicial." See Mijan Damaika,
The Faces of Justice and State Authority 3-6 (1986); Zeidler, "Evolution of the Adversary System: As Comparison, Some Remarks on the Investigatory System of Procedure," (1981) 55 A.L.J. 390.
2. See Goldstein & Marcus, "The Myth of Judicial Supervision in Three 'Inquisitorial' Systems: France, Italy and Germany," (1978) 87 Yale L.J. 240. For a riposte to
this article see Langbein & Weinreb, "Continental Criminal Procedure: Myth and
Reality," (1978) 87 Yale L.J. 1549. See also in reply Volkmann-Schluk, "Continental
European Criminal Procedures: True or Illusive Model?," (1981) 9 Am. J. Crim. Law
1.
3. See Damaika, "Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study," (1973) 121 U. Pa. L.R. 506; ("Barriers");
"Structures of Authority and Comparative Criminal Procedure," (1975) 84 Yale L.J.
480 ("Structures"); Goldstein, "Reflections on Two Models: Inquisitorial Themes in
American Criminal Procedure," (1974) 26 Stan. L.R. 1009; Leigh, "Liberty and Efficiency in the Criminal Process: The Significance of Models," (1977) 26 I.C.L.Q. 516.
4. Other informative writings in English about Continental criminal justice systems include Ploscowe, "The Development of Present-Day Criminal Procedures in Europe and America," (1935) 48 Ham. L.R. 433; The Accused, A Comparative Study (J.A.
Coutts ed., 1966);Gerhard O.W. Mueller & Fre Le Poole-Griffiths,Comparative Criminal Procedure (1969); Discretionary Justice in Europe and America (Kenneth Culp
Davis ed., 1976); Lloyd L. Weinreb, Denial of Justice (1977);John H. Langbein, Comparative Crimimal Procedure: Germany (1977); Weigend, "Criminal Procedure: Comparative Aspects," in Encyclopedia of Crime and Justice 537 (Sanford H. Kadish ed.,
1983); Human Rights in Criminal Procedure: A Comparative Study (J.A. Andrews,
ed. 1982); Criminal Procedure Systems in the European Community (Christine Van
Den Wyngaert, ed. 1993); Criminal Justice in Europe: A Comparative Study (Phil
Fennel1 et al., eds., 1995).
On the French system more particularly see Pugh, 'Administration of Criminal
Justice in France: An Introductory Analysis," 23 La. L.R. (1962); A.V. Sheehan,
Criminal Procedure in Scotland and France (1975);Tomlinson, "Non-adversarial Justice: The French Experience," 42 Md. L.R. 131 (1983);Frase, Introduction to translation of French Code of Criminal Procedure (1988); Frase, "Comparative Criminal
Justice as a Guide to American Law Reform: How Do the French Do It, How Can We
Find Out, and Why Should We Care?," 78 Cal. L.R. 539 (1990) ("How and Why");
Pradel, "France" in Criminal Procedure Systems in the European Community (Christine Van Den Wyngaert ed., 1993).
19971
ANATOMY OF A FRENCH MURDER CASE
529
also been surveyed as potential sources for the importation of procedures into anglophone systems.6 There is, however, a dearth of written material in English about the detail of the manner in which
criminal cases are actually processed through their successive stages
in Continental systems.6 Knowledge of the manner of processing
cases can provide a basis for anglophones from which to theorize
about these systems and to make decisions about the importation of
procedures. There are, of course, codes of criminal procedure operative in these Continental systems, but the study of those in the abstract, even with learned commentary, will not provide an adequate
understanding of these systems in operation. As a contribution towards this basic empiric knowledge about the French criminal justice
system I decided to examine as closely as possible through all its
stages a case in that system and to write up what was revealed. References to relevant articles of the Code de Procbdure Pbnale (CPP) are
included where appr~priate.~
The case involved charges of murder and aggravated assault.
The hearing took place in the cour d'assises at Le Mans on 5 and 6
April, 1993.8 I attended it throughout. After the hearing I was permitted to read the dossier of the case in which the pre-hearing stages
were recorded. The people involved in this case I have referred to
anonymously.
The facts of the case, as gleaned from the hearing and the dossier, were briefly as follows. The accused, his wife and two sons had
been living for some 20 years in the Paris area where the accused
worked. They lived in a caravan but spent holidays in a village near
5. See, for example, Weigend, "Continental Cures for American Ailments: European Criminal Procedure as a Model for Law Reform," 2 Crime and Justice 381
(1980); Frase, "How and Why," id.; Van Kessel, "Adversary Excesses in the American
Criminal Trial," 67 Notre Dame L.R. 403 (1992); Leonard H. Leigh & Lucia Zedner, A
Report on the Administration of Criminal Justice in the Pre-Trial Phase in France and
Germany (19921, for the British Royal Commission on Criminal Justice (the Runciman Commission) which reported in 1993.
6. The closest to this I have come across is Sheehan, supra n. 4.
7. References will be to the CPP as it stood at the relevant times, 1991-93. Subsequent pertinent changes have been indicated where appropriate in the footnotes.
The CPP dates from 1958. It replaced, without basic change, the Code dTnstruction
criminelle of 1808.
8. The cour d'assises hears the most serious criminal cases, e.g., murder, rape,
armed robbery. Less serious cases are heard by the tribunal correctionnel and the
least serious by the tribunal de police. The percentage of criminal cases heard by the
cour d'assises is actually less than 1%. See MinistPre de la Justice, L'Annuaire Statistique de la Justice 1988-1992,91-97, showing 0.8% for 1988 and 0.5% for 1992. The
case to be here discussed should not therefore be regarded as typical of the French
criminal justice system but as revealing how serious crimes are dealt with and, like
jury trials in the common law system, as setting a standard for the French system as
a whole.
530
W01.45
Le Mans where the accused had a house. In March 1991the wife left
the accused after starting divorce proceedings and returned to live
with her family in another village near Le Mans. In May 1991 she
took up with another man. The accused returned to the Le Mans
area and discovered that his wife was keeping company with the
other man. The accused armed himself with a shotgun and revolver
and went to the other man's house on the night of 16 June 1991. At
about 10:30 p.m. he fired a number of shots into and through the
front door with the shotgun while the other man was pushing against
the door from the inside to keep the accused out. One of the shots hit
the other man in the left thigh. The accused then broke down the
door, entered the house and fired two more shots from the shotgun.
One shot was fired at point-blank range into the left side of the other
man lying wounded on the ground. (The accused denied throughout
the proceedings having fired such a shot.) The man died within minutes from the two shotgun wounds. The other shot was fired through
the lock of the door to the room in which the accused believed his wife
was hiding. The wife had, however, fled through the window of another room. When the accused realized this he went after her with
his revolver. He fired two shots in the air but the pellets of a third
shot hit her in the back of the head, causing bleeding but no serious
injury. The accused and his wife then conversed, the accused asking
her to come and resume cohabitation with him. When the fire brigade arrived on the scene the accused drove off, with his weapons.
He returned to his house, cleaned the weapons and hid them in the
attic. He was apprehended near his house about two and a half hours
after the shooting. There were two other people in the other man's
house when the shooting started - the man's daughter and her boyfriend. At the time of the shooting the accused was aged 44, his wife
was 6 years younger. The accused's appeal against a divorce decree
obtained by the wife had been rejected a few days before the shooting.
This was not known by the wife at the time of the shooting but was
apparently known by the accused.
(a) By the gendarmerie

The initial stages of the investigation were handled by the gendarmerie of the village where the shooting occurred.9 Five gen9. The two main police forces in France are the police nationale and the gendarmerie. Broadly speaking the police nationale operate in the larger urban areas
and the gendarmerie in the smaller urban areas and the countryside. Within these
two forces are the judicial police (police judiciaire), comprising officers and agents.
The judicial police are charged with the initial responses to the commission of offences
and with such investigative activity as is required of them by superior investigative
authorities, i.e., prosecutors and investigating judges: CPP art. 14.
19971
531
darmes were at the scene a few minutes after the shooting. The
prosecutor's office had also been informed of the shooting10 and the
prosecutor on duty arrived at the scene soon after the gendarmes.
The initial stages of the investigationll included:
- an examination of the house and its surrounds which included the discovery of 4 cartridge cases outside the front
door (later written up in detail),
- photographing the scene, including the position of the
body,
- arranging for an examination of the body by a medical expert and receiving his preliminary findings,
- arranging for the body to be removed to the morgue and
held there (on the authority of the prosecutor),
placing seals on the doors to the house (on the authority of
the prosecutor),
- visiting, with the prosecutor, the house of the suspect (the
subsequent accused) and searching it for weapons (none
found),
- searching further for the suspect,
- arranging medical examinations by a local doctor of the
wife of the suspect and the two other people in the house
at the time of the shooting.
Other more technical investigations were carried out by the Research Brigade of the gendarmerie at Le Mans. These included:
- a more detailed examination of the scene and the body,
- taking samples for analysis,
- taking photographs (67 in the dossier),
- making drawings of the plan of the house, of what was
seen on arrival, and of the trajectories of the shots.
At midnight, an hour and a half after the shooting and about an
hour before the suspect was apprehended, the village gendarmerie
began taking statements from two of the people (the deceased's
daughter and her boyfriend) in the house at the time of the shooting.
These statements were typed up on the appropriate form and signed
by the person making the statement and the officer to whom it was
made.12 They eventually became part of the dossier.
10. The judicial police are required to inform the prosecutor immediately of a
crime flagrant (CPP art. 54). The offence in this case was a crime because it carried a
punishment greater than the minimum then provided for a crime which was r6clusion
criminelle for 5 years (Code Pknal arts. 6 and 7 and Ordonnunce 60-529art. 8). (The
minimum has since been increased to 10 years.) It was flagrant because it had just
been committed (CPP art. 53).
11. The investigative powers of the judicial police in relation to crimes (and &Zits)
flugrants are set out in Chapter 1,Title 2,Book 1 of the CPP.
12. The power to take statements fkom witnesses is contained in CPP art. 62,
which makes the giving of such statements obligatory. The written record of such a
532
[Vol. 45
The suspect was found by the gendarmes near his house about
two and a half hours after the shooting. He was brought to the gendarmerie station in the village. He was placed under garde a vue.
(This is a procedure by which the judicial police may detain for interrogation and other investigative purposes a person caught at the time
of or soon after the commission of an offense and suspected of having
committed it. The period of detention may be up to 24 hours, extendible to 48 hours on the authority of a prosecutor. At the time of these
events the suspect had no right to legal advice during the garde a
vue. Thegarde a vue is an integral part of the French criminal justice
system.13 The procedure has been the subject of statutory revisions
recently14 and there is provision now for some legal advice during the
garde a vue.)
The suspect was medically examined by the local doctor early in
the garde a vue and was found to be fit to undergo it. He was also
given an alcohol test. In the evening of 17 June the gendarmerie requested and obtained from the prosecutor a prolongation of the garde
a vue for another 24 hours from the expiration of the first 24 hours
after the apprehension of the suspect.l5 Both the request and the
prolongation were in writing and signed. The garde a vue in fact
came to an end at 8 p.m. on 18 June, giving a period of detention of
about 43 hours. The suspect was medically examined at the end of
this period and nothing pathological was noted.16 The dossier contained a record of the garde a vue specifying the reasons for it, the
time it lasted (with the prolongation noted) and what transpired during it.l7
The suspect was questioned by the gendarmes intermittently
over the period of the garde a vue. Periods of rest up to three and a
half hours were noted.18 He was questioned both about his personal
history (part of his personnalite')lg and the facts relative to the shooting (faits). The suspect denied throughout the garde a vue any involvement in the shooting of the deceased. He denied having a
shotgun and denied being in the village concerned on the night of the
statement, and indeed of other investigative measures, is referred to as a procks-verbal (procb-verbaux in the plural).
13. The garde ci vue
is dealt with in CPP arts. 63 to 65.
14. These statutory revisions are detailed in section 9 below.
15. CPP art. 63 authorizes such prolongations.
16. A person under a garde a vue has the right to a medical examination aRer 24
hours, but the prosecutor may authorize a medical examination at any time during a
garde a vue: CPP art. 64.
17. As required by CPP art. 64.
18. Also as required by CPP art. 64.
19. "PersonnalitPis not easy to translate. It includes personal history (familylife
[with parents, siblings, spouse, children], schooling, work record, military service),
material situation, leisure interests, and character traits (particularly traits indicative of good or bad character). I will use the word personnalitt! (as including those
elements) in this article rather than English approximations.
19971
533
shooting. He said he was a t home from 6 p.m. on 16 June except for a

visit on foot to his mother's house about 400 metres away, on the return from which he was arrested. Asked why the motor of his car was
still warm about midnight, he said he had run the motor with the car
stationary for a lengthy period before the visit to his mother because
he was having problems with the battery. The gendarmes went out
and checked with the mother, aged 82, the story of a late-night visit
and were told there had been none. This was then put to the suspect
who replied that he did not know why she had said that but, as it was
his mother, he could not say she was lying.
During the period of the garde a vue the wife of the suspect was
also questioned at length, as to the facts relative to the shooting, the
history of her relationship with the suspect, and her relationship
with the deceased. She told of an incident about eight years earlier
when the suspect had tried to shoot her with a shotgun but had been
prevented by their elder son and in the struggle between those two a
shot had been discharged into a piece of furniture (a buffet). (This
incident, although at some remove in nature and time, from the
shooting the subject of the investigation, was to figure again at the
hearing.) For the purposes of the investigation by the gendarmerie,
the buffet (with a bullet hole in it) was located at the house of the
suspect's mother, was formally seized, photographed, and the suspect's mother declared the guardian of it.
After the suspect's wife, the deceased's daughter and her boyfriend had been interviewed, the suspect was "placed in the presence"
of each of these witnesses to the shooting. Their allegations were put
to him and he was invited to respond. He denied he was present at
the time of the shooting, said the witnesses were liars and that they
had grudges against him.
Not having found the weapons assumed to have been used by the
suspect, the gendarmerie requisitioned the local fire brigade to drain
a pond near the suspect's house. This was done the same day (17
June) but without finding any weapons.
Apart from the suspect, his wife, his mother, the deceased's
daughter and her boyfriend, the gendarmes interviewed twelve other
people during the period of the garde a vue - the elder son of the
suspect and one of the suspect's brothers (about their respective family lives with the suspect and his general character),20 four of the local firemen who were first on the scene, five neighbors (who heard
shots, some of whom saw a man with a gun at the scene, and one of
whom saw a man hanging about the house at 9 p.m. and later saw
the same man outside the house with a shotgun and the suspect's
wife), and a person who saw the suspect at a fair in the village where
20. These two interviews were as to the personnulit6 of the suspect rather than as
to the facts of the case.
534
W01.45
the shooting occurrred in the afternoon before the shooting and was
struck by his "haggard look" and got the impression that he was
"looking for someone".
The record of these interviews was typewritten on forms headed
"PROCES-VERBAL D'AUDITION DE TEMOIN" (RECORD OF EXAMINATION OF WITNESS), except in the case of the suspect, a
"PERSONNE GARDEE A VUE", who was referred to as such in the
heading rather than as a "TEMOIN".
Other recorded steps in the investigation by the gendarmerie included searches (of the houses of the suspect and his mother),
seizures (of the suspect's possessions when apprehended, some of his
clothes and the car he was driving - actually the property of a
brother), requisitions to cany out work (drain the pond, develop
films, take possession of the seized car), placing under seals (the
houses of the deceased and the suspect), and ascertainment of the
state of public lighting outside the deceased's house. An inventory of
(potential) exhibits was also compiled - 15 in all.
The results of the investigation by the gendarmerie were summarised in a document headed "PROCES-VERBAL DE
SYNTHESE. This became the first of the 57 documents recording
the whole of the investigation by or at the instance of the gendarmerie. The summary of the interrogation of the suspect was that
"whatever the question asked, it is impossible to obtain a coherent
reply'' and that the suspect "remains imperturbable before the seriousness of the facts and appears to show no emotion". The conclusion
drawn from the investigation was that there were weighty and corroborative indicia (des indices graves et concordants) sufficient to justify charging the suspect with assassinat (premeditated homicide),
tentative d'assassinat (attempted premeditated homicide) and coups
et blessures volontaires avec arme (assault and wounding with a
weapon). The gendarmerie consequently directed that the suspect be
taken before the prosecutor who had initially been involved in the
investigation. This was at 8 p.m. on 18 June.
(b)
By the investigating judge Guge d'in~truction)~~

(i) In relation to the facts (les faits)
The prosecutor, having been notified that the garde a vue had
come to an end and that the suspect was being brought to his office a t
the court house (cite'judiciaire) requested, by a requisitoire introductif,22 that the investigating judge on duty that week (also with an
office in the court house) investigate the "serious presumptions" of
-
21. Juge d'instruction is often translated as examining magistrate but I prefer the
more literal investigating judge.

22. Required by CPP art. 80 to empower the investigating judge.
19971
535
pre-meditated homicide against the suspect and issue a warrant for

his detention. The suspect was accordingly taken directly before the
investigating judge for a "first appearance interrogation" (interrogatoire de premi6re comparution).25 Also present at this interrogation were an assigned lawyer (avocat) representing the suspect and a
recording clerk (greffier). The gendarmes, who had been involved in
the garde a vue and who had escorted the suspect to the court house,
were excluded from the interrogation. The investigating judge first
confirmed the identity of the suspect. He then informed him that he
was being charged (inculpk)24 with the offenses specified by the gendarmerie. He also advised him that he was free not to make any
statement.
The investigating judge was aware that the defendant (the inculp6) had denied everything at the garde a vue but that there was
compelling evidence against him. He started the interrogation by
asking the defendant about his marriage problems and the divorce.
The defendant spoke freely about this. He then started talking about
the shooting and what led to it. He said that he had seen his wife and
the deceased near the latter's house and in an "amorous attitude" and
realized they were living together. That made him furious. The following evening, in a fit of anger, he took his shotgun, four cartridges
and his loaded revolver, went to the deceased's house, shot four times
into the front door (twice into the lock), entered through the door,
which had come open, saw nobody behind the door but saw his wife
leaving through a window, followed her, fired two revolver shots in
her direction to frighten her, she came back towards him and said she
still loved him and wanted to live with him. At that moment the fire
brigade arrived so he drove off, returned to his house and hid the
shotgun and the revolver in the attic.
The defendant's statement, in a form agreed upon between the
defendant and the investigating judge, was typed up by the greffer
and signed by the defendant, the investigating judge and the greffier.
The defendant was then taken to the local gaol where he remained,
under an order of the investigating judge for his "provisional detention", renewed after the first twelve months, until the hearing of the
case more than 21 months later.25
23. Dealt with in CPP art. 114.
24. "Znculpt?"was used at this time as a past participle translatable as "charged"
and also for the person so charged, the subject of an investigation by an investigating
judge. The term was replaced pursuant to an amendment of the CPP in 1992 by the
expression "mise en ezamen" ("placed under examination"). By this amendment the
"inculpation"or "charging"was not to occur, if at all, until the completion of the investigation. I will use the term "defendant"to refer to the "inculpt?".
25. An investigating judge has the power to order the provisional detention of a
defendant during his or her investigation: CPP art. 144. The grounds for such detention include guaranteeing the availability of the defendant for the purposes of the
536
Wol. 45
On the day the investigating judge was requested to investigate

he issued a commission rogatoire to the gendarmerie to carry out the
fullest investigation, including interviewing all useful witnesses, "in
the interests of the manifestation of the t r ~ t h " . ~The
6 gendarmerie,
who had just spent the previous two days in intensive investigation,
replied, in a procds-verbal de synthdse, that they had searched for all
witnesses capable of making manifest the truth, that none other than
those already interviewed had been discovered and that the results of
their investigation had already been forwarded.
The investigating judge then set in train a number of further investigative measures.27 He issued a commission to two medical experts28 to carry out an autopsy on the deceased, and a
complementary commission to the gendarmerie to be present and to
take photographs. An autopsy report was duly received signed by the
two medical experts. The cause of death was found to be multiple
interior injuries from two firearm wounds. An hypothesis that the
wound on the left side under the rib-cage was from a shot at point
blank range was said to require further consideration in the light of
the ballistics expertise. The gendarmerie supplied a small album of
19 photographs taken during the autopsy.
The investigating judge also commissioned a mechanical expert
to test the battery of the car used by the defendant. The ensuing
report found nothing wrong with the battery.
The investigating judge directed that there be a visit to the defendant's house.29 He commissioned the gendarmerie to make the
necessary arrangements - to transport the accused there, ensure security during the visit, and take photographic and sealing equipment.
The visit took place on 4 July. Present were the investigating judge,
the greffier, the defendant, his lawyer (another one, chosen by the
defendant) and a number of gendarmes. The defendant showed the
party where his shotgun and revolver were hidden (in the attic). They
were recovered, and, with some ammunition, officially seized,30 photographed, and added to the list of exhibits. The gendarmerie summarized all the events of the visit in aprocds-verbal de synthdse of the
-
investigation. An order for detention can only be for one year, but may be renewed for
successive periods of a year: CPP art. 145-2.
26. Commissions rogatoires (commissions to make inquiries) are dealt with in
CPP arts. 151 to 155.
27. The investigating judge has the power to "proceed to all investigative acts that
he judges useful for the manifestation of the truth": CPP art. 81.
28. Provisions dealing with experts and expert evidence are contained in CPP
arts. 156 to 169-1.Experts are drawn from lists maintained by the superior courts the cour de cassation (national), the cours d'appel (regional). The subject is dealt with
more fully in section 9 below.
29. This was within the power given to the investigating judge to visit les l i e u
(the scene(s) of the crime) by CPP art. 92.
30. The power of search (perquisition) includes the power of seizure (saisie).
These powers are dealt with in CPP arts. 94 to 98.
19971
537
same date. After the visit the defendant was taken back to the office
of the investigating judge where he was further interrogated, in the
presence of his lawyer. He was first interrogated about the facts. He
added some further details to his original statement to the investigating judge. He said he had been around the deceased's house in the
early evening of the shooting, had seen the deceased and his (the defendant's) wife together in the parking area, became angry and went
off and got his two weapons. He returned to the deceased's house,
saw the deceased and his wife inside, called out: "Open up or I'll
shoot", fired twice into the lock, tried to open the door, did not know if
someone was behind the door or not, fired two shots through the door,
pushed down the door, crossed the hallway, saw nobody on the
ground, saw his wife fleeing, fired two shots after her in the air and a
third, lower, which hit her. He was "mad with anger" and panicked
when the firemen arrived. (This expanded account opened up the
possibility of knowledge that there was someone behind the door
when he shot through it, and conceded that he hit his wife with a
revolver shot.)
The defendant was questioned on the same occasion on his personnalite'. The results of this and other such inquiries will be dealt
with later.
After the discovery of the defendant's weapons, the investigating
judge commissioned a ballistics expert to investigate and report generally and with particular attention to the question whether a shot
from the shotgun had been fired at the victim while lying on the
ground. The gendarmerie were commissioned to assist the ballistics
expert a t the scene and with photography. In a four-page report the
expert noted that the shotgun in question had two different barrels one fired bullets (balles) and the other fired buckshot (chevrotine). He
concluded in his report that five shots had been fired from the gun a t
the scene - the first into the lock of the door (a bullet), the second
through the right side of the door (buckshot), the third through the
left side of the door (a bullet), the fourth into the left side of the victim
on the ground (buckshot), the fifth through a bedroom door and into
the skirting board on the other side of the room (a bullet).
A further ("complementary") report was then requested of the
ballistics expert by the investigating judge seeking greater precision
on the relation between the shots fired and the wounds to the deceased. The clothing of the deceased when shot was forwarded to the
expert. This second ballistics report was of 31 pages accompanied by
two books of photographs - one showing the trajectories of the five
shots and the other showing the weapons (in detail), the munitions
and the results of test firings. The conclusions on the shots that hit
the deceased were as follows. The second shot, through the right side
of the door, had hit the deceased in the left thigh while he was braced
538
[Vol. 45
("buttressed") against the door from the inside. The fourth shot, resulting in a wound under the left rib-cage, was "incontestably" fired
directly into the victim at point blank range (2-5 cms). This was
"proved" by the size and nature of the tatouage around the wound as
evidenced by the expert autopsy report and the accompanying photographs. Further, the trajectory of the shot in the victim's body excluded any material possibility that the victim was upright when
fired upon.
At the time the second ballistics report was requested, the same
ballistics expert and an expert chemist were commissioned to investigate and report on whether powder traces on the pullover of the deceased and the jacket of the defendant matched. An earlier expert
report from a research laboratory on this question had been inconclusive. The report of the second expertise, highly technical and with
many spectrograms, concluded that the powder traces on the two garments matched and further, although there had been no such specific
commission, that the powder from inside other buckshot cartridges of
the same brand as used by the defendant also matched that on the
garments. The experts drew a further conclusion that the defendant
had shot at least once "from the hip".
After the experts' reports had been received the defendant was
brought again before the investigating judge and was informed about
them and the conclusions reached. His lawyer was also present (a
different one again). The defendant was informed of his right to ask
for a "counter-expertise"or a "complementary expertise" and the time
limit applicable (up to 10 days). The defendant was further interrogated by the investigating judge on the basis of the conclusions
reached by the experts. He reaffirmed that he had only fired four
shots from the shotgun, all from outside the front door, that he did
not think anyone was behind the door when he fired, and that there
was no-one on the ground when he entered the house.
About this time in the investigation the defendant's brother, who
owned the car (a Citroen BX)the defendant had been driving on the
night of the shooting, wrote to the investigating judge requesting the
return of his car. The investigating judge sought, in writing, the
views of the prosecutor on the matter. The prosecutor replied that he
did not oppose the restitution of the vehicle to its owner. The investigating judge then ordered in writing that the vehicle be returned to
the brother and that the order be executed by the gendarmerie in the
village of the (private) garage to which the vehicle had been taken
when seized. The wife of the defendant subsequently wrote to the
investigating judge protesting the restitution of the vehicle to the defendant's brother but no action was taken on this letter. The gendarmerie involved forwarded in due course to the investigating judge
a proc8s-verbal describing the execution of the order of restitution.
19971
539
At this stage in the investigation a lawyer wrote to the investigating judge advising that she was the counsel (conseil)for the wife of
the defendant who wished to become a civil party (partie civile) in the
proceedings. The lawyer later wrote to the same effect on behalf of
the mother and father of the deceased and their nine surviving children (brothers and sisters of the deceased).S1
As the next step in the investigation the investigating judge ordered a re-enactment and a c~nfrontation.~~
These occurred on 27
November 1991. The defendant was taken to his house and asked to
re-enact his departure and return, his weapons being returned to him
for the purpose. He was photographed doing all this. Present also
were the investigating judge, the greffier, the prosecutor, the defendant's lawyer, his wife's lawyer and many gendarmes. The party then
moved to the deceased's house (in another village), where it was
joined by the defendant's wife and the two other people in the house
at the time of the shooting. For this part of the re-enactment the
defendant wore a bullet-proof vest. The versions of events according
to the defendant, his wife and the other two present at the time were
acted out and photographed (including the defendant pursuing his
wife with a revolver). This resulted in a "photographic dossier" of 79
photographs.
After the re-enactment a confrontation between the defendant
and the other three in the house a t the time was held. The defendant
continued to maintain that he had shot twice into the lock and twice
through the door. Asked by the investigating judge why he had shot
twice through the door, he said he really did not know why. Asked to
explain the shot through the bedroom door, he did not deny firing it
but did not remember doing so. The defendant's wife thought there
were two shots fired into the lock of the front door but could not remember the number of shots in all. The boyfriend of the deceased's
daughter also thought two shots were fired into the front door lock
but thought there was a fifth shot fired, not being the one (the sixth
on this account) fired through the bedroom door (where in fact he
happened to be hiding).
At the end of the re-enactment and confrontation the investigating judge asked the defendant and his wife (a civil party) if they
31. A victim of a criminal offense, the family of the victim and others having interests based on the rights of a victim, are entitled to become civil parties in criminal
proceedings. They are entitled to be legally represented, to be notified about and have
a say on investigative measures affecting them, to appear as parties at the hearing,
and to claim damages from the accused, which can be awarded in addition to any
penal sanction. CPP arts. 85 to 91 deal with the position of a civil party during an
investigation by an investigatingjudge. The subject is dealt with more m y in section
9 below.
32. Confrontations are provided for in CPP arts. 118 to 121 but re-enactments are
not specifically referred to in the CPP.
540
[Vol. 45
wished any other investigations to be carried out a t the scene, to

which the replies were negative.
The prochs-verbal of the confrontation was hand-written by the
greffier at the scene and typed up later that day back at the office.
The gendarmerie supplied their prochs-verbal of the re-enactment
(covering the transport of the defendant to the two places, the photography, the breaking of the seals on and then the resealing of the two
houses and the two weapons) much later, after a written reminder
from the investigating judge.
A consequence of the re-enactment and the confrontation was a
third commission to the ballistics expert. Copies of the prochsverbaux of the re-enactment and the confrontation were sent to the
expert who was asked by the investigating judge to determine if what
the defendant and his wife and the boyfriend of the deceased's daughter had said were compatible with the results of his earlier reports
(i.e., that there was only one shot into the lock of the front door and 5
shots in all).
This third ballistics report was of 15 pages. The expert excluded
the hypotheses that two shots had been fired into the lock (one would
have to have been of buckshot and none was found in the lock) and
that 4 or 6 shots rather than 5 had been fired. He found it "incontestable" that the victim was shot twice with buckshot, the second time
at very short range and while not vertical. This was confirmed, he
added, by his earlier chemical analysis of the clothing.
The investigating judge also commissioned a psychiatrist and a
psychologist to examine and report on the defendant's wife. This joint
report (7 pages) found the wife to be normal and without psychiatric
problems but regularly re-living the shooting scene, resulting in a latent anxiety state which necessitated treatment. She was also found
to be suffering from asthma. It was noted that she was very attached
to the deceased.
The next part of the investigation involved the defendant's
house. The defendant's lawyer wrote to the investigating judge asking for the restitution of the keys to the house so it could be rented
out to pay off a loan. The defendant also wrote a letter to the same
effect. The investigating judge sought the views of the prosecutor,
which were that the restitution of the keys would be "inopportune".
The investigating judge, notwithstanding, ordered the restitution of
the keys.33 The order was sent to the accused's lawyer, execution
(the handing over of the keys) to be through a court office. The investigating judge subsequently ordered, without opposition from the
prosecutor, the lifting of the seals on the defendant's house.
33. The prosecutor has a right of appeal to the chambre d'accusatwn against any
order by the investigating judge: CPP art 185. It was not exercised in this instance.
19971
541
The defendant was brought once more before the investigating

judge to be acquainted with the third report of the ballistics expert
and the report of the psychiatrist and psychologist on his wife. He
remarked about the latter report that his wife's asthma was of long
standing and that she had crises even when things were going well.
The defendant's lawyer was absent for the early part of this meeting.
The defendant was again brought before the investigating judge
to be shown the photographs of the re-enactment. His lawyer was
present. He said that he only remembered firing four times, all into
or through the front door, that he never saw the deceased's body and
did not know, when he left the house, that he had killed the deceased.
(ii) In relation to the defendant's personnalite'
Simultaneously with the investigation into the facts relating to
the offenses, an investigation was carried out into the defendant's
personnalite'. This investigation had been commenced by the gendarmerie during the garde a vue when the then suspect was questioned about his personal history and a son and a brother about their
family lives and the suspect's general character, but the investigation
was mainly conducted by the investigating judge.34
Information collected by the investigating judge about the defendant's personnalite' went into a separate part of the dossier.
This part of the dossier contained, first, a document stating that
the defendant had no prior convictions. Then there was a certificate
as to the defendant's military position (excused from military service
because of a work injury to the leg) and a birth certificate.
Next there was a detailed account of the defendant's personal
history under the heading: PROCES-VERBAL D'INTERROGATOIRE: CURRICULUM VITAE. This interrogation took place
in the office of the investigating judge after the visit to the defendant's house when his weapons were located (4 July 1991). Theproc&sverbal had been typed by the greffierand signed by the defendant, the
investigating judge and the greffier. The interrogation covered his
early family life, schooling (left school at age 14), working history
(farms, metalwork), marriage and subsequent family life (some early
excessive drinking, some violence towards wife, defendant's version
of the incident with the shotgun eight years earlier, long-standing
problems with his in-laws including a beating by his brother-in-law
two months after his wife had left him, divorce proceedings and the
wife's secrecy and deceptiveness about them), leisure activities (small
game hunting), and a self-assessment (rather solitary). He gave the
names and addresses of four people who could witness for his charac34. The power of an investigating judge to conduct an inquiry into the personnalit6 of defendants, including their "material, familial, or social situation,"is contained
in CPP art. 81.
542
W01.45
ter - two neighbors where he had lived near Paris, one neighbor in
his village and one friend since childhood. The defendant's lawyer
was recorded as having asked some questions towards the end of the
interview about the defendant's earnings and the maintenance he
had been paying to his wife.
The investigating judge then issued a commission rogatoire (curriculum vitae) to the Commissaire de la Police at Le Mans to conduct
a detailed inquiry into the behavior, morals, associates, family background and means of existence of the defendant, to interview all appropriate people, and to verify thoroughly the information contained
in the record of the defendant's interrogation on his curriculum vitae.
The police at Le Mans proceeded to arrange the detailed inquiries
required through local police branches and gendarmeries. Interviews
were recorded with the mother, four of the brothers, a sister and the
two sons of the defendant, with the four witnesses nominated by the
defendant, and with two of the defendant's ex-employers. Two other
ex-employers were sought out - one knew nothing of the defendant
and the other had closed down. Other information about the defendant's domestic life in the caravan park near Paris, including two reported episodes of violence towards his wife, was forwarded by the
local police. The interviews and information, in the form of procdsverbaux, were relayed to the investigating judge through the police a t
Le Mans.
At the beginning of the investigation the investigating judge
commissioned an expert psychologist to examine and report on the
defendant. The expert was specifically asked to explain how the defendant had come to commit the acts in question and to advise how to
prevent the defendant acting anti-socially in the future. The expert's
report was 16 pages long. It had sections headed: Psycho-Social History, The Facts, Examination: Interview, Rorschach, Discussion, Conclusions. There were 17 conclusions reached, including that the
defendant had an egocentric and rigid psychological structure, that
he thought of his wife as an object that he owned, that he refused to
accept the reality of the divorce proceedings pursued by his wife, that
his behavior could be characterized as suppressing an intruder (the
deceased) and re-appropriating his wife as object, that his behavior
could be described as passionnel, impulsive, aggressive and even paranoiac, but that, psychologically, there was no insanity,35 delirium, or
even "extenuating circumstance^",^^ that he continued to be danger35. Insanity (&menee) was a defense under the old Code Pbml art. 64. See now
art. 122-1 of the new Code Pbnal for the effects of s~ecifiedtmes
- - of mental disorder on
criminal responsibility.
36. The question of whether or not there are "extenuatingcircumstancesn(circonstances attdnuantes) is to be considered by the courts after a finding of guilt: CPP arts.
356 to 359, 467-1.
19971
543
ous in relation to his wife, and that he was likely to present the facts
to suit himself.
The investigating judge also commissioned an expert psychiatrist to examine and report on the accused. In response to specific
questions posed, this expert reported that the defendant was not suffering from any mental abnormality but that his depressive condition
during the months before the shooting resulted in a "slight diminution of responsibility", that the defendant was not dangerous, that he
was "accessible" to a penal sanction, that no specific treatment was
called for, that the defendant was socially readaptable, and that he
was not insane at the time of the shooting. This report was more
favorable to the defendant than that of the psychologist.
On receipt of these two expert reports the defendant was brought
before the investigating judge and acquainted with their conclusions.
The defendant's lawyer was not present. The defendant stated he
wanted time to consider whether he should request any "counter-expertise" or "complementary expertisen. The proc&s-verbauxof all the
people interviewed about his personnalitt! were also read to the defendant. He made observations on two of them only. About that of
his younger son he said it had clearly been "dictated" by his mother.
About his elder son's description of the earlier incident with the shotgun he said he had not fired the gun but that it had gone off accidentally when his wife had tried to take it from him after he had held it
out for her to take.
The conclusions of the two expert reports were forwarded by mail
to the wife and the members of the deceased's family (as civil parties)
and to their lawyer.
Included in the personnalitt part of the dossier was a further
procis-verbal from the gendarmerie at Le Mans, reporting on inquiries made by thepolice in the area near Paris where the wife and children were still living in the family caravan. The effect of the report
was that the wife was extremely hostile towards the defendant because he had killed "the man of her life", that she feared other deaths
(of the defendant or her brothers) and that afier a visit to his father
in prison the younger son "had it in forn the police and the justice
system and had assaulted a young man in the caravan park whose
brother was doing military service with the police.
(iii) Further investigation
At the conclusion of the investigating judge's investigation of the
facts and personnulit6 the dossier was sent to the p r o s e c ~ t o r .The
~~
prosecutor, two weeks later, issued a supplementary requisition (rdquisitoire supplt!tifl requesting the investigating judge to investigate
544
[VO~.
45
further the circumstances of the revolver shots fired by the defendant

when pursuing his wife. The investigating judge commissioned another report from the ballistics expert (the fourth in all). This report
(12 pages long with an annexure of 19 photographs) concluded that
the revolver shot that hit the defendant's wife in the back of the head
could not in the circumstances have been fatal. The defendant was
again brought before the investigating judge and acquainted with
this last report. His lawyer was not present. The defendant stated
that he had no intention to kill his wife - if he had he would have
used the shotgun. The dossier was again forwarded to the
prosecutor.
The prosecutor then drew up a requisition38 to the investigating
judge for the transmission of the dossier to the procureur-gknkral attached to the cour d'appel at Angers. This was a lengthy document
detailing the facts as revealed by the investigations of the gendarmerie and the investigating judge, requesting a "re-qualification" of the
offense committed against the wife from attempted assassinat to assault with a weapon, and requesting finally that the investigating
judge order that the dossier be sent to the procureur-gknkral (at Angers) "to be proceeded with" according to the law. The investigating
judge, a t the end of a document covering the same matter and in
much the same wording as the requisition of the prosecutor, made
the order requested.s9
The aspects of the investigation referred to so far were all recorded in the dossier. The documents in the dossier were accumulated over the period of the investigation and were generally in
chronological order.
The dossier was divided into four parts (cotes). Each part had its
own folder. Part A contained formal documents (entitled Pibces de
Forme) such as the list of exhibits, memoranda of transfer of documents from the gendarmerie to the investigating judge (bordereaux
d'envoi), a report from the gendarmerie about the removal of seals,
letters from the defendant about changes of lawyer, letters from
those connected to the deceased seeking to become civil parties.
There were 47 documents in Part A and they were listed on an inventory (inventaire).
Part B contained documents on the defendant's personnalitk (entitled Renseignements et Personnalitt!). These documents included
various certificates about the defendant (birth, previous convictions
(none), military service), the record of the investigating judge's inter38. Provided for also by CPP art. 175.
39. As empowered by CPP art. 181.
19973
545
rogation of the defendant on his curriculum vitae, a commission from

the investigating judge to the police to make detailed inquiries about
the defendant's curriculum vitae, all the records of the interviews
conducted by the police or the gendarmerie about the defendant with
his family, neighbors, friends and ex-employers, the reports of the
psychologist and the psychiatrist on the defendant, and the record of
the investigating judge's interview with the defendant when the contents of the above interviews and reports were communicated to him.
There were 47 documents in Part B, plus an inventory.
Part C contained documents on the pre-trial detention of the defendant (entitled Ddtention Provisoire et Contrdle Judiciare). The
first document was an order by the investigating judge for the provisional detention of the defendant (ordonnance de mise en de'tention
provisoire). This was dated 18 June 1991, the day the accused was
first brought before the investigating judge on the termination of the
garde a vue. The reasons given for this order included the likelihood
of a heavy sentence, the protection of existing evidence and evidence
that might still be discovered, the avoidance of pressure on witnesses,
and fear that the accused might abscond. In these circumstances it
was stated that "strict judicial control" (or heavily conditioned bail)
would not suffice. The other documents in Part C dealt with the prolongation of provisional detention after the first year. There was a
request from the investigating judge for the prosecutor's views, a requisition from the prosecutor for a prolongation, the record of a hearing on the matter before the investigating judge with the defendant
and his lawyer present, and finally an order by the investigating
judge dated 15 June 1992 prolonging the provisional detention for
one year from 18 June 1992. There were 6 documents in Part C.
Part D of the dossier contained the record of the investigation "on
the facts" (entitled Pi&cesde Fond). This was the largest part of the
dossier, containing 170 documents, some of which were themselves
mini-dossiers (the ballistics reports, files of photographs). The first
57 documents recorded in detail the investigation by the gendarmerie
before and during the garde a vue. These documents included a 7page summary of that investigation, records of interviews with the
suspect and 16 witnesses (both as to facts and personnalite'), and an
inventory of exhibits (15 in number). The remaining 113 documents
recorded the investigation made by or at the direction of the investigating judge and included the records of 9 interviews by the investigating judge of the defendant (7 on the facts and 2 on his
personnulitd), 9 reports of experts, and 8 documents passing between
the investigating judge and the prosecutor (5 requisitions from the
prosecutor, 3 of which were in reply to "communications" from the
investigating judge (ordonnances de soit-communique')).
546
[Vol. 45
The dossier in this case was an impressive record of the investigation. All the steps taken in the investigation were recorded in detail, generally typed or printed, and on paper with appropriate,
usually pro forma, headings. Records of interviews, however, did not
appear to be verbatim transcripts but officialparaphrases. The interviews generally read like continuous statements and this was made
more apparent by the contrast with occasional passages noted as being in response to a question (Sur Interrogation, or S.I.). The records
of the interviews by the investigating judge with the defendant appeared to be summaries of the defendant's account of things. There
would seem to have been no inhibition in asking leading questions.
The investigating judge was obviously well-informed on the subjectmatter of the interviews. The interviews were recorded by the greffier, present at the time, on dictation from the investigating judge.40
The lawyers for the defendant and for the civil parties have
rights of access to the dossier and may have copies of the documents
contained in it.41 Apart from that the investigation and the dossier
are meant to be secret.42
The prosecutor has a right of appeal to the chambre d'accusation
against any decision taken by the investigating j ~ d g e . ~The
3 defendant and a civil party have more limited rights of appeal, also to the
chambre d'accusation.~No appeal was taken during the subject investigation although on one minor point the investigating judge declined to accept a requisition of the prosecutor. Appeals from
decisions of the investigating judge are apparently rare.
The record of what happened after the investigation was not as
comprehensive or as well organized as the record of the investigation.
The documents relating to the committal for hearing and to the hearing did not become separate parts of the dossier or go into separate,
additional folders but were kept loose on top of the folders for the four
parts of the investigation. This is indicative of the importance of the
investigation in relation to the totality of the proceedings.
40. I was informed of this by investigating judges and have observed the process
in operation. The investigating judge, from my observations, checks with the interviewee that what is being recorded is acceptable to the interviewee.
41. At the time of the investigation in this case such access was available for a
period of 48 hours preceding an interview by the investigating judge with the defendant or a civil party: CPP art. 100. Amendments to the Code from January 1993 gave
defense lawyers continuous access to the dossier in their client's case from four days
before a defendant's first appearance before the investigating judge. After the change
of government in May 1993 the Code was further amended to subject access by defense lawyers to their client's dossier to a determination by the investigating judge
taking into account the "conditions necessary for the smooth-running of the investigating judge's practice," although access from four days before the defendant's first
interrogation was preserved. For these recent amendments to the Code see Trouille,
"A Look a t French Criminal Procedure," [I9941Crim. L.R. 735 a t 741-42.
42. CPP art. 11.
43. CPP art. 185.
44. CPP arts. 186 and 186-1.
The order of the investigating judge transmitting the dossier to

the procureur-g6ndral attached to the cour d'appel at Angers was
made on 10 November 1992. The matter came before a chambre
d'accusation consisting of three judges of the cour d'appel at Angers
on 16 December 1992. The record of the proceeding showed that an
avocat-g6m'ral attached to the cour d'appel at Angers appeared, that
the accused did not appear and was not represented but that he did
have a lawyer, and that there were 12 civil parties. The record also
showed that the court heard an oral report from the President of the
court45and oral requisitions from the avocat-g6nbral. The court had
before it the dossier of the investigation.
On 6 January 1993, a judgment of some 10 pages was rendered.
The judgment examined the facts and expert opinions as recorded in
the dossier, relying largely on the summary made by the prosecutor
in his final requisition, and then drew certain conclusions from
them.46 It was noted that, although the defendant had "maintained
his declarations" despite "incoherences" in them that had been
pointed out to him, the investigation demonstrated that the defendant had formed a plan to kill the deceased, that he had collected arms
and ammunition for the purpose, and that he had chosen the appropriate moment to carry out his plan. There were thus "weighty and
corroborative proofs" against the defendant sufficient for a committal
(renvoi) before the cour d'assises of the Department of the Sarthe
there "to be judged in conformity with the law" on accusations of premeditated homicide and assault with a weapon. It was noted in the
judgment that the "proceduren (investigation) was regular in form
and complete in substance.
It is appropriate to reflect at this point on the nature of the proceedings before the chambre d'accusation. The common lawyer is accustomed to think of committal proceedings in terms of a prima facie
case, or of evidence produced by the prosecution which, if accepted as
credible, could result in a finding of guilt by a jury properly instructed
and acting reasonably. The question is not whether the committing
45. This report was based on a written report by another member of the court (a
conseiller).
46. It is noteworthy that the chambre d'accusation concluded that buckshot had
been fired twice through the front door panels of the deceased's house and that two
bullet shots had been fired into the lock. The ballistics expert maintained in three
reports that the two shots through the front door panels were first of buckshot and
then of a bullet, while only one shot, a bullet, had been fired into the lock. The chambre d'accusation accepted that the defendant had fired a t point blank range into the
victim. This shot, with the shot fired from inside through a bedroom door, makes a
total of six shots, although the ballistics expert maintained that five shots only had
been fired from the shotgun.
548
Wo1. 45
magistrate would convict but whether a jury could c0nvict.~7 The

language used in the judgment of the chambre d'accusation in this
case could be said to be ambiguous in this context. Thus it was said
that the investigation as recorded in the dossier had "demonstrated"
the existence of facts sufficient for a conviction and that the (exculpatory) statements of the defendant lacked coherence. On the other
hand it was said that there was ground (or cause) to "accuse" the defendant of the two offenses for which he was sent to trial. The overall
effect of the judgment was, I believe, that the chambre d'accusation
was satisfied that the defendant had committed the offenses for
which he was sent to trial. The language of the Code de Prockdure
Pe'nale throws some light on this question. The chambre d'accusation
is described as having an investigative jurisdiction "of the second degree
(in contrast with the investigative jurisdiction of the
investigating judge "of the first degree (leve1)".49 If the facts established against (retenus a la charge de) the defendant constitute the
most serious type of offense (crime), the chambre d'accusation is to
place him or her upon accusation before the cour d'assises;50 if the
chambre d'accusation assesses (estime) the facts as constituting a
lesser offense (dklit or contravention) it is to send the case to a lower
court;51 if the chambre d'accusation assesses the facts as not constituting any offense it is to discharge the accused.S2 The chambre
d'accusation also has the power to order any further investigation it
considers "useful".53 All this language suggests a body making findings of fact rather than assessing the potentiality for such findings by
some other body.
The hearing of the two charges against the accused54 took place
before the cour d'assises at Le Mans on 5 and 6 April 1993.
(a)
The jury panel
The morning of the first day was given over to matters concerning the jury panel. By 10 a.m. the jury panel had been assembled in
the public gallery of the courtroom. A bell then rang and the Presi47. See, for England, John Frederick Archbold, Pleading, Evidence and Practice
in Criminal Cases (44th ed. 1992) 8 4305 to 4-307; for Australia, Mark I. Aronson &
Jill B. Hunter, Litigation: Evidence and Procedure (5th ed. 1995) 88 12.96-98.
48. Heading to Ch. 2 of Title 3 of Book 1 of the CPP.
49. Heading to Ch. 1 of Title 3 of Book 1 of the CPP.
50. CPP art. 214.
51. CPP art. 213.
52. CPP art. 212.
53. CPP art. 201.
54. L'accusl, so called after committal for hearing before the cour d'assises.
19971
549
dent (red robed), two other judges55 (black robed) and a prosecutor
(black robed) entered from a side door at the bench end of the courtroom. The lawyer for the accused (black robed, white trim), but not
the accused, was already present, as was a grefler (black robed). The
prosecutor and the greffier sat on the same elevated level as the
judges, and at right angles to them, the prosecutor to their right, the
grefler to their left. The accused's lawyer sat at a desk on the floor of
the court, in front of the seat for the accused, which adjoined, at a
lower level and separated by a glass screen, the prosecutor's desk. At
the request of the President the greffier proceeded to call the roll of
the jury panel. The name, place and date of birth, occupation and
address of each person on the panel list was read out and, if present,
the person so responded. Two persons not present were excused,
with the consent of the prosecutor, after medical certificates were
read out and a third, reported to be in hospital, was also excused.
One person on the list had not been served with the appropriate summons. A fireman who had come from Paris was excused as not liable
to jury service. There were no applications from those present to be
excused from service. Thirty-two "titular" jurors were found to be
present and 7 "supplementary" jurors. At this point the court adjourned but the jurors were asked by the President to remain in the
court in order for him to explain, less formally, their function. The
President and the other two judges returned, unrobed, to the court
soon after and stood in front of the jurors on the floor of the court.
The President proceeded to explain the nature and function of the
jury in the French criminal justice system. He referred to the history
of the jury in France, its democratic nature, its importance in the
justice system, the selection of the jury and the rights of challenge (5
for the defense and 4 for the prose~ution),~~
the number of jurors (9)57
and their collegiate functioning with the 3 judges, the anonymity of
the vote in the jury room (by secret ballot) and for public purposes
(through the expression "a majority of at least 8 votes" against the
accused),58 the need to be impartial and neutral until the time for
judgment and the requirement not to talk about the case outside the
deliberation room. The panel was then told of the three cases listed
for hearing that week and that a jury would have to be selected
afresh from the panel for each case. Pamphlets explaining the court
and jury systems were handed out to the members of the panel. The
panel was invited by the President to ask any questions. Questions
-
55. Called assesseurs. A trainee assesseur was present with the other three
judges during the proceedings but did not participate in them.
56. So provided by CPP art. 298.
57. CPP art. 296.
58. This way of expressing the decision is required by CPP art 360. Any decision
against the accused must be by a majority of at least 8 votes, i.e., a two-thirds majority: CPP art. 359.
550
W01.45
asked included: whether the jurors could take notes (yes); whether
the jurors decided upon punishment as well as liability (yes); why
there were supplementary jurors (in case a titular juror became indisposed); whether a juror could be recalled for jury service later (not
within 5 years); how much would they be paid (a modest flat fee plus
the cost of meals and any travel and accommodation, slightly more
for salaried people). The panel was then asked to be back at court by
2 p.m. when the first listed trial would start.
(6) Selection of the jury, call-over of witnesses, and reading of the
committal judgment
At 2 p.m. the court reassembled. The accused was brought in
through a side door handcuffed to one police officer and accompanied
by another. The handcuffs were removed and the accused sat down
between the two police officers. Names of jurors on the panel were
drawn from an urn by the President. Five challenges were made by
the lawyer for the accused (all women) and 3 by the prosecutor. The
jury as finally struck consisted of 8 men and 1woman, with two supplementaries (1 man and 1 woman). The jury was sworn in
collectively.
A lawyer announced her appearance for the original 12 civil parties and for 4 additional ones - the wife (separated) and the 3 children of the deceased.
There was then a roll-call of witnesses - 4 experts (2 of whom
were present), 3 police officers (all present), and 5 other witnesses
(one of whom - the daughter of the deceased present in the house at
the time of the shooting - was absent, an absence explained by a
medical certificate to the effect that she was at a very late stage of
pregnancy and could not come to court, leading the President to excuse the witness, without objection from any party, on the basis that
her deposition could be read out in due course). The President asked
the witnesses to wait in the witnesses' room until it was their turn to
testify.
The President next asked if there were any applications about
publicity in relation to the hearing.59 There were none.
The President then asked the greffier to read out, and the accused to listen to, the judgment of the chambre d'accusation sending
the case before the cour d'assises (the renv~i).~O
The greffier proceeded to read, somewhat haltingly, the 10 pages of that judgment.
This constituted a detailed account for the jurors (or those who could
absorb it) of the course of the investigation, the conclusions reached
by it, and of the accused's personnalite'. The judgment concluded by
59. A hearing is to be open to the public unless publicity would be "dangerous for
order or morals" in which case the judges can order a closed court: CPP art. 306.
19971
551
referring to the accusations against the accused of premeditated

homicide and assault with a weapon.
The accused was not asked how he "pleaded* to these
accusation^.^^
(c)
Interrogation of the accused and the witnesses
The President next proceeded to interrogate the accused on his

personnalitk.62 The accused was asked to stand during this. He was
not required to take an oath. The interrogation was based on the
dossier which was on the bench in front of the President. It covered
his family background, education, employment (mainly metal work)
and absence of military service (because of an accident at work). The
interrogation than focused on the accused's "stormy*married life, his
drinking, his violence (both largely denied by the accused), his relations with his in-laws, his interest in guns. He was questioned about
the "famous scene" involving the earlier discharge of his shotgun. He
said he was arguing with his wife about the disciplining of their
younger son when the wife said she would like to kill him. He went
and got his shotgun, loaded it and was handing it to her by the barrel
telling her to shoot him when there was a struggle and the gun went
off accidentally. The President remarked that the witnesses were
against the accused on this incident, and on his drinking and violence. About the divorce proceedings initiated by his wife the accused
alleged that she was taking them behind his back while denying she
was taking them at all. The President suggested that she was in fear
of him. An incident involving the accused and one of the wife's brothers was also explored. The brother with two other men visited the
accused some two months after the accused and his wife had separated and allegedly beat the accused up resulting in him being certified unfit for work for 50 days. Asked by the President why the wife's
brother would want to do that after the separation, the accused replied that his in-laws were always meddling in other people's
business.
After he had finished his interrogation of the accused on his personnalitd, the President asked the other judges, the jurors, the prosecutor, the lawyers for the civil parties and the accused, and the
61. There is no plea of guilty in the French system. Every hearing considers all
the available evidence. The Commission Justice Pdnale et Droits de Z'Homme, presided over by Professor Delmas-Marty (hence the "Delmas-MartyCommission"),in its
Report La mise en &tat&s affairespknales (1990)proposed the introduction of a plea
of guilty procedure but the proposal has not been adopted by the government.
62. CPP art. 328 provides for the President to interrogate the accused and receive
his declarations. The President is not expressly required to interrogate the accused
on his or her personnalit6.
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[Vol. 45
accused himself if they had any questions.63 The accused's lawyer

elicited, through the President, that the accused had been in detention for nearly 22 months.
Witnesses were then called by the President on the accused's personnalitk. They came from the witnesses' room to a curved, silvercolored bar in front of the bench. They swore an oath read by the
President with their right arm raised.64 The first witness had been
nominated by the accused to the investigating judge. He stated that
he preferred to rely on his deposition as contained in the dossier and
to answer specific questions. His evidence was thus in response to a
few questions asked by the President. He said he was a childhood
friend of the accused's but had not seen much of him since. He
thought the accused was a hard worker, not an habitual drinker and
not violent by nature. When the President had finished questioning
the witness he asked if anyone else had any questions. There being
none, the witness was excused.
The next person to be called was the accused's younger son. Because of the relationship, he was not required to take an 0ath.~5He
stated that he would prefer the President to read out his deposition
and then answer questions.
The President read out parts of the deposition, to the effect that
the accused was a violent man, particularly when he had been drinking but even when he had not, that he often beat his wife, that he
stopped her visiting her family, and that there were arguments with
her family when they visited his house. Questioned about the earlier
shotgun incident he said that the accused "took the gun" to his wife
during an argument and was only stopped by the intervention of the
elder son. In response to questions from the accused's lawyer, the
witness agreed that he had been charged, together with his elder
brother, with assaulting his paternal grandmother by threatening
her with a shotgun, and conceded after some prevarication that he
had been convicted and given a six-month suspended sentence. The
accused, asked by the President if he had any questions, stated that
this son had not been present at the time of the shotgun incident.
The third witness was the accused's elder son. He also was not
sworn. He commenced with a statement about his father that was
more hostile than the younger son had been and then answered questions from the President. He said he was a witness to the "brutality*
63. The other judges and the jurors may ask questions directly on request to the
President: CPP art. 311. The others may pose questions through the intermediacy of
the President.
64. The oath was "to speak without hate and without fear, to tell the whole truth
and nothing but the truth" as specified in CPP art. 331. The oath was not sworn on a
holy book.
65. CPP art. 335, which exempts close relatives by blood or marriage from swearing an oath.
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of his father towards his mother, a brutality aggravated by alcohol,

that his father always initiated the violence, that from age 14 he had
tried to intervene to protect his mother but that it was not until age
18 that he was of equal strength with his father, that the separation
was because of the beatings by the father and that the father was
very jealous about the mother. He confirmed that he had intervened
to save his mother at the time of the earlier incident with the shotgun
and that his mother had thrown the shotgun into a lake aRer that
but that his father had found it there and retrieved it. He said his
father would say anything to prove his innocence. Af'ter the President had finished his questions, the accused's lawyer asked some
questions about the assault on the paternal grandmother. The witness claimed that he and his brother had only been trying to recover
furniture taken from their father's house which they believed they
were entitled to, and that they had only been fined for the offense.
The lawyer informed the court that this witness had also been given
a six-month suspended sentence. The lawyer for the civil parties
then had the witness confirm that he and his brother had been left
with nothing by their father's family.
At this point the President announced an adjournment. It lasted
about 15 minutes. On the resumption the psychiatrist who had examined and reported on the accused was called as the next witness.
He swore an oath appropriate to an expert witness.66 He referred to
his report in the dossier and then briefly summarized his conclusions.
The summary was to the effect that the accused was of average intelligence, had been educated below his ability, that he was a rigid, intolerant and impulsive person, that he had accepted badly the
separation from his wife and had become depressed as a result, that
he had no mental illness, was not legally insane, was not dangerous
and did accept some guilt for what he had done. The only questions
asked of this witness were from the President.
The President then sought to call the psychologist who had reported on the accused. He was not present in court. This was to have
been the last witness on the accused's personnalite'. The President
announced that he would now proceed, with some reluctance, to an
examination of "the facts" although the examination on the accused's
personnulit6 had not been completed. The President commenced a
second interrogation of the accused, again standing and again not on
oath. Asked why he had made no admissions to the gendarmerie during the garde c i vue, he replied that he was conscious of the honor of
his family. Asked why he had then made some admissions to the investigating judge, he said he wanted to explain that he was "angry"
after seeing his wife and her lover together and that he had fired "like
66. The oath is "to give assistance to justice in honour and conscience":CPP art.
168.
554
Wo1.45
a madman." The President then took the accused through the events
of the fatal evening. He suggested to the accused that he must have
known there was someone behind the front door when he fired two
shots through it (denied), and that when he entered the house he
must have seen the deceased, then wounded, lying on the floor in the
front hall (also denied). Generally the accused stuck to the story he
told to the investigating judge despite some close questioning on its
credibility by the President. The President again asked the other
members of the court, the prosecutor, the lawyers for the civil parties
and the accused if there were any further questions of the accused
but there were none.
The psychologist now having arrived at court, he was taken as
the next witness. The President announced that the hearing on the
personnalite' was being resumed. The psychologist referred to his report on the accused in the dossier and proceeded to summarize his
conclusions. He said the accused was obstinate, aggressive, egocentric, rigid in his views, had an intense affectivity, regarded his wife as
his property, as an object he had to control, and as the cause of any
problem in their relationship. He also said that the accused was of
normal intelligence, not suffering from any pathology, and that there
were no "extenuating circumstances" benefiting the accused in relation to the shootings. The psychologist was then asked some questions by the accused's lawyer. The lawyer pointed out that the
psychologist had examined the accused one and a half years ago and
asked if his opinion would necessarily be the same today (would be no
different). The lawyer also pointed out that the psychologist had examined the accused's wife as well as the accused and asked if the wife
had been the source of any of his opinions about the accused (no).
The President proceeded next to question the psychologist on his report on the wife.67 His conclusions were that for the wife the marriage had been a "catastrophe", that she had wanted to divorce, or to
suicide, soon after she was married, that she was the subject of continuous violence during the marriage but was too afraid to leave, that
she had been "very strongly marked" by the marriage, that she had a
tendency to hysteria and for good reason but that she showed no pathology. There were no questions other than from the President on
this report.
The trial now returned to "the facts". The next witness was the
medical expert who had conducted the autopsy on the deceased and
who had also examined the body at the house soon a h r the shooting.
He described the two wounds to the deceased, concluded that they
were shotgun wounds and that they were the cause of death. He was
"practically certain" that one shot (left thigh) was fired through the
67. This was in the context of an examination of the accused's personnalitk but it
had the potential for additional prejudice to the accused on the question of guilt.
19971
555
door and the second (under left ribcage) was fired directly into the
body at close range.
The next three witnesses were from the gendarmerie at Le Mans.
They were members of the judicial police. They had all visited the
scene soon after the shooting but after the arrival of the village gendarmerie. The first of the three witnesses was the Commander of the
gendarmerie for the Le Mans area. He recounted the early stages of
the investigation by the gendarmerie, both those from the village (the
main investigators) and those from Le Mans. He referred to the fact
that the accused had made no admissions during the garde a vue and
remarked that he had not known such "defiance" in his 20 years experience. In answer to a question by the accused's lawyer he conceded
that the investigation had been by the local gendarmerie, not by himself or the Le Mans gendarmerie, but said they (the locals) had
"touched nothing" before his arrival. He also conceded to the accused's lawyer that he had noticed on arrival a t the scene that the
front door had fallen on the victim. The other two gendarmes, senior
officers of the Research Brigade a t Le Mans, confirmed in brief the
account of the early stages of the investigation given by their Commander. One had found two cartridge cases at the scene.
The next witness was the boyfriend of the deceased's daughter,
present at the house at the time of the shooting. His evidence was
that he and the victim were pushing against the front door from the
inside trying to keep the accused (recognized by his wife when
outside and known to have a shotgun) from entering. He said that
two shots were fired into the lock of the door, the door was pushed
open a little, the barrel of the shotgun came through the opening and
he tried, unsuccessfully, to wrest the gun from the accused. Two
shots were then fired through the door, the second of which hit the
victim. The witness then sought refuge in a bedroom. The front door
was forced open and he heard it fall into the hallway. He thought two
more shots were fired, one through the door of the bedroom he was
hiding in. He thereupon jumped out the window, ran to a neighbor
and rang thegendarmerie. After the President had finished questioning the witness, the prosecutor asked him the width of the front hall.
The witness said "about one metre". The prosecutor suggested it
might have been wider but remarked that the correct width could be
found in the dossier. The witness also confirmed to the prosecutor
that he had been lightly wounded by the gunfire through the front
door. There were no other questions of the witness.
The President next read out the deposition of the deceased's
daughter given to the gendarmerie during the garde a vue. She had
been medically certified as in a late stage of pregnancy (to the previous witness) and unable to attend court. She had become a civil party
at the beginning of the hearing. She deposed that she had been hid-
556
[Vol. 45
ing in a wardrobe most of the relevant time but thought she heard
four shots into the front door, then one more inside the house, followed by more shots outside.
The accused's wife was then called. She was not sworn because
of her relationship to the accused and because she was a civil party.68
She spoke first of her "atrocious" and "poisoned" life with the accused,
saying she wanted a divorce within months of her marriage but was
too scared to leave her husband. She said she fmally had a chance of
happiness with the victim but that had now been destroyed. She
then, in response to the President, recalled what she could of the
events in question. After she saw her husband outside the house
with a shotgun and revolver she hurried inside wanting to lock the
front door. Before that could be done her husband had fired two shots
into the lock. She took refuge in an inside room. She heard other
shots but did not remember how many. After her husband had entered the house she escaped through a window but was pursued by
him firing his revolver. She was hit in the back of the head by revolver shot. She persuaded him to come back into the house where
she got him to hand over his weapons and ammunition. He asked her
to come away with him but she refused. She heard the fire brigade
arriving whereupon her husband took back his weapons and ammunition and drove off. In response to questions from the accused's lawyer the wife denied that her family had been a real problem in her
marriage. She also said that she had not really known the victim
when she left the accused and had only become close to him two
months later.
The President adjourned the court at about 7 p.m. until 9 a.m.
the following morning. The court had been sitting for five hours with
one short adjournment.
At 9 a.m. the following day the ballistics expert was called and
sworn as an expert witness. The President referred to the three reports of this expert which dealt with the firing of the shotgun. The
expert described the gun and how it worked (bullets from the right
barrel, buckshot from the left). He was categorical about the number
of shots fired and where they went - the first, a bullet, into the lock
of the door; the second, buckshot, through the door and into the body
of the victim; gun then recharged; the third shot, a bullet, through
the door and into a piece of furniture inside; the fourth, buckshot,
directly into the body of the victim then lying on the ground from very
short range (10 centimetres k 10%); gun recharged again; the fifth
shot, a bullet, through a bedroom door and into the skirting board on
the other side of the room.
68. Both categories are exempted under CPP art. 335 from swearing an oath, the
exemption for spouses subsisting even aRer a divorce.
19971
557
The President put to the witness the accused's allegation that he

had fired the first two shots into the lock. The witness sought to refute this by asserting that the victim had been hit both times with
buckshot. The first time must have been the second shot fired by the
accused, the first having been a bullet into the lock. The witness referred to a photograph with one of his reports showing pieces of buckshot taken from the victim's first wound. This photograph was shown
by the President to the jurors and the accused's lawyer. In response
to the President's invitation after he had finished questioning the
witness, the lawyer for the civil parties asked if the shotgun had been
cleaned after the shooting (yes). The accused's lawyer, also on invitation from the President, then questioned the witness on the number
of shots fired from the shotgun. The lawyer pointed out that not only
the accused, but also his wife and another witness in the house at the
time, had said that two shots were fired into the lock. The witness
responded by asserting that a second shot would have to have been of
buckshot and no buckshot was found in the lock, that a second shot
would have blown away the lock altogether which was not the case,
and that the ballistic and chemical analyses made it clear that only
three shots had been fired into the door. The President then questioned the witness on the revolver and the implications to be drawn
from the wound to the wife's head (probably not an attempt to kill the
wife).
After this witness' evidence, the President further questioned the
accused. The President suggested that the accused had carefully selected the cartridges that went into the two barrels of the shotgun.
The accused replied that that was just chance. The President remarked that the accused had cleaned his gun after the shooting. The
accused replied that that was normal after hunting. The President
asked, rhetorically, if the shooting had been just another hunt for the
accused. The President then asked why he had hidden the gun afterwards. The accused replied that it was so his wife could come and
take the gun away. The President then put it to the accused that he
had not "lost his head" at the time of the shooting but had planned
and calculated everything. The accused did not reply.
The evidence having concluded the President adjourned the
court. On returning ten minutes later the President made the photographic records in the dossier (of which there were two copies) available for the jurors to inspect.69 The photographs were of the
deceased's house, the autopsy (with a warning that those photographs might be "a bit horrifying"), the re-enactment, the shotgun
and the revolver. The inspection lasted about ten minutes.
69. The jurors have no access as of right to the dossier, only as permitted by the
President.
558
[Vol. 45
(dl The addresses

The lawyer for the civil parties was first called on to address the
court.70 She described the marriage of the wife (one of her clients)
and the accused as "a hell". She acknowledged that the wife had been
adulterous with the victim but said that had only happened after the
separation from her husband in circumstances where the wife was
seeking some tenderness from a man. This had become, however, the
reason for the accused's vengeance. The victim had become an obstacle to the accused's repossession of his wife. The accused was rigid,
aggressive, intolerant and egocentric. He had not acted out of love, it
was not a crime passionnel but the recovery of an object he had lost.
He would never accept a divorce. The accused was still capable of
killing his wife and his children. Let us not forget, the address concluded, the "explosive destruction" of the victim by the accused.
At 11:45 a.m. the court adjourned for lunch. It resumed at 2:15
p.m. The prosecutor was called on for his address (requisitoire). He
stated that he represented "society" and spoke as part of the judiciary. He referred to the fact that the accused had said nothing to the
gendarmerie and had "hidden things" from the investigating judge.
He said it was clear that the accused had killed the deceased voluntarily and with premeditation and that he had voluntarily wounded his
wife. On the accused's personnalite' he said that the accused may
have been a person of "intense affectivity", as the psychologist had
found, but he had no sensibility towards his wife. He noted also the
psychologist's conclusion that there were no "extenuating circumstances" favoring the accused. He claimed also that the fact that the
sons had committed an assault on their grandmother did not affect
the truth of their testimony. The prosecutor pointed out that the prescribed penalty for premeditated murder was penal servitude for life
(re'clusioncriminelle a perpet~ite'1.7~
The factors in this case against
the accused, he said, were that he had caused the death of an innocent man, that he had caused great suffering to his wife, that he had
expressed no regret for what he had done, and that he was still dangerous. There was, however, the depression the accused had suffered
afier the separation and this could be regarded as an "extenuating
circumstance". The prosecutor asked the court to sentence the accused to 20 years penal servitude, a sentence both "just and
necessary".
The accused's lawyer was then called on for his address
(plaidoirie). He started by noting that although much attention had
been given to the accused's personnalite' very little had been given to
the fact that the accused was a hard worker, that he was helpful to
70. The order of addresses is prescribed by CPP art. 346.
71. Code Pdml art. 302, as amended by loi (statute) No. 81-908 of 9/10/1981.
19971
559
his neighbors, and that he had no criminal record. The problems between the accused and his in-laws, it was claimed, were not the fault
of the accused but of the in-laws, as witness the savage assault on the
accused by his brother-in-law two months after the wife had left the
accused. The sons had been proved to be liars by their evasiveness
over the outcome of the assault charges against them and had obviously taken their mother's side against their father. It was necessary
also, claimed the accused's lawyer, to look at the character of the
wife. She had lied to the divorce court in claiming she was separated
from her husband so as to obtain maintenance payments from the
state (pension aZiment~ire),7~
she had lied to the accused in telling
him she had discontinued the divorce proceedings, she had asked the
investigating judge to return to her the vehicle her husband had been
driving knowing that it belonged to her husband's brother, and she
had lied about her acquaintance with the victim as she was able to
describe him soon after his death as "the man of my life". It was clear
that the wife hated the accused and would say anything against him.
By contrast, the lawyer claimed, the accused was "obsessed" about
getting his wife back and restoring their relationship. In fact, psychologically, the wife "dominated" her husband and this was evidenced by the scene between them after the shooting when the wife
calmed her husband, brought him back into the house and disarmed
him. The lawyer then turned to the facts of the case. He pointed out
that two witnesses, as well as the accused, had said that 4 shots were
fired into the front door. If only 5 shots were fired and the fifth went
through a bedroom door then, it was suggested, no shot could have
been fired directly into the victim. At this point the lawyer asked for
the photographs of the re-enactment to be shown to the jurors. The
President refused this request, saying to the lawyer: 'You are pleading now". The lawyer then held up his own copy of a photograph
before the jurors. The photograph showed the victim lying on the
hallway floor in the angle between the wall and the door with his left
side towards the ground. The lawyer asked how a second shot in
those circumstances could have been fired into the victim's left side.
The lawyer then referred to the statements (in the dossier) by the
local gendarmerie to the effect that when they arrived on the scene
the victim was lying on his back under the front door. How, he asked,
could the accused have shot the victim in the side towards the back?
The lawyer also pointed out that the medical expert accepted that the
second shot into the victim could have come through the door. The
lawyer concluded by suggesting that there were very considerable
"extenuating circumstances" in favor of the accused.
72. There was no evidence as to this at the hearing.
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THE AMERICAN JOURNAL OF COMPARATIVELAW
[Vol. 45
The President then announced the hearing was closed. He ordered the dossier to be placed in the hands of the grefier.73 He then
adjourned the court for the judges and jurors to retire74 and deliberate. It was 4:00 p.m.
(e) The judgment

The judges and jurors returned to court at 6:00 p.m. The President asked for the doors to be opened and the public given free access
to the court room. The President then read out a series of questions
and answers, the latter, he said, being by a majority of at least eight
votes.75 Had the accused inflicted blows and violence on the deceased? - Yes. Had this occasioned the death of the deceased? Yes. Had the accused the intention to kill? - Yes. Had he acted
with premeditation? - Yes. Had the accused voluntarily inflicted
blows and violence on his wife? - Yes. With a weapon, being a revolver? -Yes. Were there extenuating circumstances? -Yes. The
President then pronounced sentence on the accused of 18 years penal
servitude (rkclusion criminelle), two-thirds of which to be served
. ~ ~ President advised the accused
before any release (h la ~ G r e t k ) The
of his right of appeal to the cour de cassation.77 He then declared the
criminal hearing closed.
(fl The civil claims

After closing the criminal hearing the President adjourned the
court. Five minutes later he returned to court with the other two
judges but without the jurors. He then declared open the hearing on
the civil claims.78 The lawyer for the 16 civil parties was called upon
and presented a typed memorandum claiming specific amounts as
73. As required by CPP art. 347, with the effect that it is not to be consulted
during deliberations.
74. Before retiring the President is required by CPP art. 353 to read out the following instruction: "The law does not require the judges to account for the means by
which they are convinced, it does not prescribe rules on which depend the fullness and
sufficiency of a proof; the law prescribes that the judges question themselves quietly
and calmly, seeking to ascertain, with a sincere conscience, the rational effect of the
proofs led against the accused and of his means of defence. The law asks of the judges
one question only, which encompasses their whole duty: "Do you have a personal conviction [of the guilt of the accused]?" The instruction was not read out in this case.
This provision has been held by the cour de cassatwn not to be one of substance so
that non-compliance with it will not result in an order of nullity on cassatwn. (Bulletin des Arrgts de la cour de cassation en matDre criminelle, 6/11/1968,No. 286.) The
instruction is also required by the article to be posted in the deliberation room.
75. The majority (two-thirds) required for any decision against the accused: CPP
art. 359.
76. A non-parole period of two-thirds of the sentence imposed was permitted by
CPP art. 720-2.
78. The procedure for the hearing of civil claims in the cour d'assises is set out in
CPP arts. 371 to 375-1.
19971
561
damages (dommages-intdr2ts)for "injuries" suffered by her clients as

a result of the actions of the accused. The amounts claimed ranged
from 100,000 francs for the wife of the accused to 20,000 francs each
for the brothers and sisters of the deceased. The memorandum was
essentially a statement of the claims and contained little by way of
argument in support of those claims and made no reference to evidence in support of the claims.
The lawyer for the accused was asked for his submissions on the
civil claims. In a brief oral submission he accepted that damages
were recoverable for "moral prejudice" but argued that the accused's
wife had suffered no "moral prejudice" as she had not been the de
facto wife (concubine) of the deceased. The court then adjourned for
ten minutes to deliberate.
On resumption the President announced the following awards in
favor of the civil parties:
the wife of the accused
the parents of the deceased
the 9 brothers and sisters of the deceased
the wife of the deceased
the 3 children of the deceased
30,000 francs
40,000 francs each
10,000 francs each
20,000 francs
40,000 francs each
These awards totalled 340,000 francs.79 The civil parties were

also awarded 5,000 francs in legal costs.
The case now having concluded the court adjourned at 6:30 p.m.
It had sat for a little less than 7 hours that day. The length of the
whole trial, including the civil claims, had been less than 12 hours.
The court seemed to have no hesitation about sitting into the
evening. The President appeared to decide the hours during which
the court sat.80
The record of the hearing
A record of what happened at the hearing was kept by the greffier
and was placed in the dossier. This was in summary form and formal
in nature. It covered such matters as the number of jurors challenged and by whom, the names and designations of the witnesses, by
whom and in what order the addresses to the court were made, the
fact that judgments were pronounced by the President in the criminal
and the civil proceedings, and the times of sittings and adjournments.
(g)
79. The damages are payable by the accused, or by a state insurance fund which
may then seek to recover them from the accused.
80. The proceedings are under the direction of the President: CPP art. 309.
Under art. 307 the proceedings are not to be interrupted but may be suspended for
rest where necessary.
562
[Vol. 45
There was no transcript or summary of the evidence given by the witnesses. It was simply noted, for example, that: "The President interrogated the accused and received his declarations on his
personnulite'". A record is required to be made of any "additions,
changes or variations" as between the evidence of a witness and his
or her previous statements (as recorded in the dossier).81 No such
record appeared on the dossier after the hearing, but probably because there were no significant "additions, changes or variations" in
this case. The record seemed concerned to make clear that the proceedings were regular in form. For example, it was noted several
times that the hearings (criminal and civil) and the judgments were
"in public", as required by CPP article 306. It was also noted that the
President "presented" the exhibits to the accused, the witnesses, and
the jurors, as specified by article 341 that they be so presented. The
exhibits (including the shotgun and the revolver) were in fact not so
"presented", but then they did not have to be under the article unless
it were necessary.
The record of the hearing noted as well that the President dispensed, under CPP article 348, with the reading of the questions to
which the judges and jury had to respond as the questions had been
posed in the committal judgment. This dispensation became the
ground of an appeal to the cour de cassation.
The dossier also contained a record of the criminal and the civil
judgments pronounced by the President at the hearing.
(a) Statements /evidence by lay people
The dossier revealed that 28 statements were taken by the gendarmerie or the police during the investigation, apart from statements made by the accu~ed.8~
Fourteen of these were taken about
"the facts" and 14 about the accused's personnalitd. Two people made
statements about both - the wife and the mother of the accused. Of
the statements about "the facts", four were from the firemen who
were first to arrive on the scene and five were from neighbors of the
deceased who saw the accused in the vicinity andlor heard the shooting. These statements were of little probative value in the event.
At the trial only two people, again apart from the accused, gave
evidence about "the facts", and the statement of a third was read out
by the President. Four people, apart from the experts, gave evidence
about the accused's personnalite'. The lawyer for the accused read
81. Pursuant to CPP art. 333.
82. As I will compendiously call the suspectldefendantlaccused henceforth.
19971
563
from statements by two other people about the accused's

personnalite'.
(b) Records /evidence by the gendarmerie and the police

About one-half of the documents in the dossier emanated from
the gendarmerie or the police. All the statements by lay persons (except most by the accused and those from the confrontation) were recorded by the gendarmerie or the police. The record of the garde a
vue comprised one-third of the documents in Part D of the dossier
(Piices de Fond).
The only evidence from the gendarmerie or the police at the trial,
however, was given by three senior officers of the gendarmerie who
had done little more than visit the scene and read the record. They
were not involved in the garde a vue and had not interviewed the
accused or any of the persons from whom statements were taken.
Their evidence was brief and summary.
(c) Reports l evidence by the experts
The dossier contained 11 reports by experts - four on ballistics,
two on chemical analyses, two medical reports on the body of the deceased, a psychological and a psychiatric report on the accused and a
combined psychiatric/psychological report on the accused's wife.
Eight experts had been involved in compiling these reports.
At the trial four of these experts gave evidence. The ballistics
expert testified as to his four ballistics reports and a jointly-authored
chemical report, the medical expert testified as to his two reports on
the deceased (the full autopsy report being jointly authored), the psychologist testified as to his report on the accused and his report
jointly with a psychiatrist on the accused's wife, and the other psychiatrist testified as to his report on the accused. The other (inconclusive) chemical report was not testified to nor mentioned during the
hearing.
The accused appealed83 against his conviction by the cour

d'assises to the cour de cassation, chambre criminelle. The one
ground of appeal was that there had been a violation of article 348 of
the CPP. This article requires the President of the cour d'assises to
read out the questions to which the court (the judges) and the jury
have to respond but provides that this reading out is not obligatory
-
83. The proceeding in the cour de cassation is by way of apourvoi (petition)rather

than an appel (appeal). It is on questions of law only and if successful will result in a
remission of the case to the trial court to be dealt with in accordance with the law as
stated by the cour de cassation. For convenience, however, I will refer to the proceeding as an appeal.
564
W01.45
when those questions have been posed in the committal judgment.

The President had in fact dispensed with the reading of the questions. The argument of the appellant84 was that the reading out of
the questions could only be dispensed with if the questions formulated by the committal judgment were in substance those questions
addressed by the judges and jury. The cour de cassation recited the
two charges specified in the committal judgment and the six questions addressed by the judges and jury in the cour d'assises. It concluded that the President had correctly applied article 348 in
dispensing with the reading out of the questions. It did not matter,
the court said, that the questions posed to the cour d'assises had been
"split up" (d6composQs) so long as they picked up the substance of
those posed in the committal judgment. The appeal was accordingly
rejected. It was noted in the judgment that the punishment had been
"legally applied" to the facts as "declared" by the court and jury.
The judgment of the cour de cassation was dated 15 December
1993, some eight months after the decision of the cour d'assises. For
this appeal the cour de cassation comprised a President and nine
other judges (conseillers),one of whom was the rapporteur. The judgment noted the "observations" of an auocat attached to the cour de
cassation (for the appellant) and the "conclusions" of the avocat ggngral. The judgment was less than three pages in length. It was only
concerned with procedural regularity. It referred to one article of the
CPP and to no cases.85
(a) The relative importance of the investigation
The investigation in this case, was by any standard, comprehensive, thorough and well recorded. The dossier produced from the investigation, including the summarizing requisition by the prosecutor,
formed the basis for the committal decision and, more importantly,
the basis for the hearing. The judges, the prosecutor and the lawyers
for the accused and the civil parties were all familiar with the dossier
and referred to it during the hearing. The presiding judge interrogated the accused and the witnesses from their depositions in the
dossier and generally sought to have their oral evidence conform to
those depositions. Some witnesses simply confirmed their depositions as read out by the presiding judge. The expert witnesses gener84. As reproduced in the judgment of the cour de cassation from the written submission (&moire) on his behalf.
85. For a longer look at a judgment of the cour de cassation in a criminal case see
McKillop, "A French Judgment through Common Law Eyes," 4 J. of Jud. Admin. 245
(1995).
86. These comments will mainly be from an Australian perspective, the common
law perspective with which I am the most familiar.
19971
565
ally gave oral summaries of their often quite lengthy written reports.
The hearing thus became essentially a public review and confirmation of the contents of the dossier,87 and hence of the conclusions that
were reached in the investigation. It could be said that the investigation was the crucial and determinative phase of the whole process
and that the hearing simply added a public dimension to the
investigation.
If the investigation in France, as evidenced by this case, is primary and the hearing secondary, then the reverse could be said to
characterize the adversarial system. What happens at the hearing,
or rather the trial, in that system is crucial in determining guilt or its
absence in that it is only on the evidence adduced at the trial before a
court that is meant to know nothing of that evidence beforehand that
the determination is made. The investigation does no more than collect material that will be presented, selectively, by the prosecution at
the trial and within the limits of examination-in-chief.
One consequence of this difference in relative importance of the
investigation and the trial is that outcomes are more predictable in
the French than in the adversarial system. The French investigation
that results in a committal for trial will generally result in a conviction a t the hearing. Only those cases in which the investigation
reveals strong evidence of guilt are sent to a hearing so that hearings
should normally result in convictions. The acquittal rate in the cours
d'assises throughout France for the five years 1988-92in fact averaged 5%of all cases heard.88 In the adversarial system the trial is
something of a lottery. Outcomes are dependent upon many variables - witnesses depart from their proofs of evidence or their prior
testimony or are unexpectedly damaged in cross-examination, the defense produces some surprises, the judge rules on the admissibility of
evidence in ways that may not have been predicted, counsel perform
well or badly, the jury is capricious, to mention a few such variables.
These variables may make for good theatre but they are not conducive to predictability in the criminal justice system.
(b)
The centrality of the dossier
The investigation in this case was recorded on documents which

constituted the dossier. There were 270 such documents, many (such
as expert reports and files of photographs) having multiple pages.
87. Evidence given at such hearings has been referred to as "precookedn:Stephln,
"Possible Lessons from Continental Criminal Procedure,"in The Economics of Crime
and Punishment (Rottenberged., 1973) 181 at 191. DamaHka has referred to the "audit character"of Continental trials in The Faces of Justice and State Authority (1986)
at 195.
88. Ministkre de la Justice, LAnnuaire Statistique de la Justice 1988-1992, 91.
The acquittal rate in the tribunaux correctwnnels over the same period was virtually
the same, according to the same source at 93.
566
[Vol. 45
The documents were generated by the gendarmerie, the prosecutor,

the investigating judge, the police, experts, counsel for the accused
and the civil parties, the accused and his wife. When the investigation had been completed the dossier was sent to the procureur-gbnbra1 at Angers. It was then placed before the chambre &accusation
there and, after the committal, was returned to the prosecutor a t Le
Mans. It was subsequently made available to the judges of the cour
d'assises who sat on the case in Le Mans. It then went on to the cour
de cassation for the appeal. It was finally returned to the prosecutor
in Le Mans. The dossier generated by the investigation thus served
as the foundation for subsequent phases of the total process and as
the integrating link between the successive phases.89
If it is accepted that the investigation is the most important
phase of the French criminal justice system then the fact that the
dossier generated by the investigation is documentary means that
the French system is essentially a written 0ne.90 The written record
of the investigation controls the subsequent phases of the process.
Knowledge about the offense and the offender is to be found, and generally only to be found, in the written record. Witnesses called a t the
hearing are expected to confirm their depositions and reports as in
the dossier and not disturb the pre-existing written record. In fact no
transcript is made of the oral evidence of the witnesses at the hearing
so should the case go on appeal to the cour de cassation that court will
be confined to the depositions and reports of the witnesses obtained
during the investigation for its knowledge of the evidence. If the trial
is accepted as the most important phase of the adversarial system
and the trial is based on oral evidence then that system can be characterized as an oral one.
There is an important comparative advantage in having the written record of the investigation central to the criminal justice process.
This lies in having the testimony of the witnesses, particularly the
witnesses to the events comprising and surrounding the offense, collected relatively soon after the occurrence of those events, when
memories are fresh. Evidence given many months and often years
after such events as generally happens in trials under the adversary
system can hardly be as reliable. The maximization of this advan89. Damagka has referred to the dossier as constituting "the backbone of criminal
proceedingsn on the Continent. See "Structures," supra n. 3, at 507. See also
Sheehan, supra n. 4, at 25, 29 and 74.
90. Before the Revolution the system was entirely written, judgment being based
on the written record of the investigation. Afber the Revolution the principles of "oralityn and "immediacy" were sought to be introduced into the judgment phase. See Esmein, Histoire de la Procedure Criminelle en France 399-480 (18821, particularly 44748. These principles do not seem to have subverted the essentially written nature of
the system, including the hearing. See Damagka, "Barriersnand "Structuresnsupra
n. 3, at 506-07 and 517 respectively.
19971
567
tage requires, of course, that the testimony be collected as thoroughly

and probingly as practicable.
One qualification to the centrality of the dossier is exemplified in
this case. The jury, it will be remembered, were not allowed access to
the dossier either during the hearing or when deliberating with the
judges prior to the decision. The jury were confined to the oral evidence at the hearing and some photographs in the dossier that the
presiding judge allowed them to see. This deprivation seems to be
explicable in terms of the reluctance of the legal professionalism of
the system to allow too great an intrusion by lay people. The extent
of the deprivation will depend on how hlly the witnesses at the hearing are able to recount orally what is in their depositions.
(c)
Control of the investigation by legal professionals
The gendarmerie notified the prosecutor's office of the shooting in

this case soon after they had been informed of it. The prosecutor on
duty notified the investigating judge on duty soon after that. They
both attended the scene of the shooting that night.
The initial investigation, however, was carried out by the local
gendarmerie. This lasted for some 45 hours, during 43 of which the
accused was held under agarde a vue. Statements were taken during
this period from all the witnesses to the events in question and the
accused was interrogated. There was some involvement by the prosecutor during this period (e.g., authorizing the sealing of the victim's
house, extending the garde a vue) but none by the investigating
judge.
The second phase of the investigation was carried out, instigated
or controlled by the investigating judge, although the prosecutor was
kept informed and had the right to be heard. This second phase included numerous interrogations of the accused, commissioning the
various experts to report, and arranging for and officiating at the reenactment and the confrontation. The investigating judge also commissioned the gendarmerie to carry out "the fullest investigation" but
the gendarmerie replied that they had already done so and had already transmitted the results. The investigating judge would have
been aware of this so the commission would seem to have been something of a formality, for the purposes of a proper record. The investigating judge also issued a commission to the police to inquire into
matters relating to the accused's personnalitk. Many interviews were
conducted by police and gendarmes pursuant to this commission. The
results were forwarded to the investigating judge who put them into
the dossier.
568
[Vol. 45
The investigating judge, it will be seen, in fact, carried out, instigated or controlled most of the investigation in this case.g1 He has
done most of the interrogation of the accused, has commissioned all
the expert reports and the personnulit4 inquiries, and has arranged
for and officiated at the re-enactment and confrontation. Statements
from the witnesses to the crucial events were also sought by the investigating judge although they were already in the dossier. These
statements, and they were important ones for the purposes of the investigation, were the only ones generated by the gendarmerie and not
by the investigating judge.92
The subordinate role of the gendarmerie and the police in this
investigation contrasts with the role of the police in criminal investigations in common law jurisdictions. The police in those jurisdictions
generally have a discretion to investigate as they see fit without control from prosecutors or the judiciary. For particularly intrusive investigative measures such as the search of premises or the
interception of telecommunications the warrant of a magistrate or
judge will normally be required, but decisions to pursue such measures and plans for their pursuit will be those of the police. Prosecutors are generally presented with the results of the police
91. This obsellration runs counter to the conclusion reached by Goldstein and
Marcus in their study of the French (and Italian and German) system(s) that when
there is a judicial investigation "it is o h n little more than a limited superintendence
of a police investigationn: supra n. 2, a t 280. This conclusion is supported by some
Continental scholars: see, e.g. Weigend, supra n. 5, a t 389-95. The conclusion has
been contested by Langbein & Weinreb on the ground that Goldstein and Marcus
"misinterpreted the most important characteristics of the procedures they intended to
describe" and that they were captives of the myths they sought to explode, myths
derived from writings in English on Contintinental systems: supra n. 2, at 1549-50,
1567-68.
92. It should however be noted as regards the investigating judge that that officer's relative importance in French criminal investigations has been declining steadily over the years in comparison with the activities of the judicial police and the
prosecutor. The Delmas-Marty Commission Report, supra n. 61, a t 130, notes that
the proportion of cases involving an investigating judge to total cases investigated has
fallen between 1960 and 1988 from 20% to less than 10%. That Report recommended
the removal of investigative functions from judges (and their transfer to prosecutors),
but the retention (and some extension) of judicial powers in relation to investigations,
particularly regarding issues of individual liberties. A "divergent opinionn of one
Commission member (M. Braunshweig, an ex-President of the cour de cassation) favored the retention of the investigating judge, noting that the Commission's recommendation was firmly rejected by a large majority of judges. The debate in France
following the publication of the Report in June, 1990, was scarcely supportive of the
Commission's recommendation. See Pradel, "La mise en B t a t des affaires p6nales.
Propos sceptiques sur le rapport de la Commission," Dalloz 1990 Chronique L11301;
Waquet, "IUflexions sur les rapports de la Commission Justice penale et droits de
l'homme," Revue de Science Criminelle et de Droit Pbml Cornpark 518 (1991). It
should also be noted that the investigating judge has been abolished in most Continental jurisdictions, including Germany in 1975 and Italy in 1989.
19971
569
investigation for the purposes of prosecution in court and have little

or no say in how those results are achieved.gs
(d) The garde a vue

The garde a uue, which in this case lasted for about 43 hours, is a
crucial but contentious feature of French criminal procedure. The
garde a vue is available to the judicial police in cases of flagrant offensesS4 (which the present one was) and in non-flagrant cases not
requiring an investigating judge.95 The provisions regulating the
garde a vue in cases of flagrant offenses authorize the judicial police
to hold in custody a suspect and any persons at the scene of the offense for a period of 24 hours. This period may be extended on the
authority of the prosecutor or the investigating judge by another 24
hours in the case of a suspect.96 All that transpires under a garde a
vue is to be recorded by the judicial police, including the periods of
interrogation and of rest. A person held under a garde a vue has a
right to a medical examination after 24 hours of being so held.97 At
the time of the present case there was no provision for the presence of
a lawyer or for legal advice during the garde a vue. Nor was there
provision for a detainee to inform relatives or friends. The judicial
police were thus able to keep the suspect isolated and to themselves
for a period up to 48 hours, and the witnesses for up to 24 hours.
The garde a vue had often been criticized in France as allowing
the police too much power over a suspect likely to.be particularly vulnerable immediately after arrest. The socialist government in power
until May 1993 enacted legislation with effect from March 1993
which allowed a suspect detained under a garde a uue access to a
lawyer from the twentieth hour of the garde a uue, with provision
from January 1994 for such access from the beginning of the garde A
vue. The conservative government in power from May 1993 repealed
this latter provision but allowed access to a lawyer from the twenti93. There are exceptions to this. For example in Australia the increasing involvement of Directors of Public Prosecutions in committal proceedings has resulted i n
prosecutors requiring the police to cany out fiwther investigations for the purposes of
those proceedings. See Brereton & Willis, The Committal in Australia 19-20 (1990).
In England investigations into serious frauds are under the control of the Director of
the Serious Fraud Office: Criminal Justice Act 1987, ss. 1-2. In the United States
district attorneys include among their functions that of chief law enforcement officers
for their jurisdictions. They thus have power to direct police investigations and will
often do so in cases of serious, complex, organized or corporate crime. See Joseph J.
Senna & Larry J. Siegel, Introduction to Criminal Justice 232-36 (3rd ed. 1984).
94. The powers of the judicial police to inquire into crimes et &Zits flagrants are
dealt with in CPP Book 1, Title 2, Ch. 1. Such inquiries are called enqu&tesas distinct
from l'instructwn (investigation) of the investigating judge.
95. The powers of the judicial police to inquire into non-flagrant cases not requiring an investigating judge (enqugtepr-6Ziminaire)are dealt with in CPP, Book 1, Title
2, Ch. 2.
96. CPP art. 63.
97. CPP art. 64.
570
LVo1.45
eth hour to continue. The socialists had also provided that suspects
under a garde a vue were to have the right to inform their families by
telephone of their whereabouts, and that witnesses were no longer to
be held under agarde a vue except in special circumstances. The conservatives in fact extended the right of suspects to inform their families of their whereabouts to include the right to inform parents,
siblings, co-habitees and employers.98
The garde a vue gives to the French judicial police a t the beginning of an investigation powers generally greater than those legally
available to the police in adversarial systems. The exercise of these
powers has become significant in the totality of the French criminal
investigation, to an extent apparently never intended by the framers
of the Criminal Procedure Code.99 Given that the judicial police are
also commissioned by investigating judges and prosecutors to do
much of the remaining investigative work, it could be maintained
that most criminal investigation is actually done by the police.100 As
already demonstrated, however, there is significant control of that
work by the investigating judge or the prosecutor.
(e) Re-enactment and confrontation
Re-enactment and confrontation as exemplified in the investigation in this case are generally not a part of criminal investigations in
common law jurisdictions.lOl The main purpose of the re-enactment
seems to have been the re-creation for the benefit of the investigating
judge of the behavior of all concerned in the events associated with
the shootings. The players in those events would be able to make
manifest what they believed had happened and the investigating
judge would thus arrive at a better understanding of the events. Another purpose would seem to have been to provide a photographic record of the re-creation for the benefit of those involved in subsequent
stages of the proceedings, particularly the judges and jurors a t the
hearing. Although the photographic record was seen by the jurors as
well as the judges in the present case, it seems clear that the re-en98. For the recent legislative changes to the garde d: vue (and to other aspects of
French criminal procedure) see Trouille, "A Look a t French Criminal Procedure,"
Crim. L.R. 735 (1994).
99. There are 22 articles in the CPP dealing with "inquiriesn by the judicial police
and 112 dealing with "investigations" by investigating judges.
100. See supra n. 91.
101. Some common law cases have involved re-enactments as part of the investigation, e.g., R v. Lowery and King (No. 1) 1972 V.R. 554 (separate re-enactments of a
murder by two co-accused which were filmed), Collins v. R (1980) 31 A.L.R. 257 (reenactment of a murder by four accused which was photographed), and Lam Chi-ming
v. R [I9911 2 All E.R. 172 (re-enactment of a murder by three accused, and of them
throwing the knife used into the water, both of which were video-taped). Confrontation as an investigative technique is likely to draw judicial criticism and result (in
Australia) in the exclusion of confessional evidence resulting from it as unfair to the
accused: Van der Meer v. R (1988) 62 A.L.J.R. 656 a t 657, 665, 672-3.
19971
57 1
actment is essentially an investigative device carried out for the benefit of the chief investigator, in this case the investigating judge. The
record is available to the participants at the hearing to allow them to
confirm (or perhaps question) the thoroughness of the investigation
rather than as evidence of the events in question.
At an adversarial trial the photographic record of any re-enactment of material events by witnesses other than the accused would
generally not be admissible in evidence in substitution for or as confirmation of direct testimony as to those events. A record of any voluntary participation by the accused in such a re-enactment would,
however, normally be admissible as a confession or an admission by
conduct.12 This difference in approach should be understood in the
context of the emphasis on the investigation in the French criminal
justice process as opposed to the emphasis on the trial in the adversarial process.
There were two confrontations between the accused and the accusing witnesses in the present case - one arranged by the gendarmerie during the garde a vue and the other arranged by the
investigating judge.103 Confrontation is more integral to the French
system than is re-enactment. Confrontation, unlike re-enactment, is
specifically dealt with in the Criminal Procedure Code. Article 118
requires that the accused's lawyer be present at any confrontation
unless such presence is waived by the accused. Article 119 allows the
prosecution to be present at any confrontation. Under article 120 the
prosecutor and the accused's lawyer can only ask questions a t the
confrontation by leave of the investigating judge. Article 121 regulates the form of the record (procss-verbal) of any confrontation.
Under article 152 the powers accorded the judicial police under a
commission to make inquiries (commission rogatoire) from an investigating judge do not include a power to conduct a confrontation with
the accused. There is no provision for any confrontation at the hearing although the allegations of the accusing witnesses will be put to
the accused at the hearing by the presiding judge.
Confrontation of the accused with the accusing witnesses is, of
course, an integral part of the adversarial system, but this happens
a t the trial rather than during the investigation. This again highlights the primacy of the trial for the adversarial system and of the
investigation for the French system. As will be discussed later the
consequences for an accused failing to respond or to respond satisfac102. The re-enactment evidence described in the preceding footnote was treated as
a confession in Collins and Lam Chi-ming and as an admission by conduct in Lowery
and King.
103. The aim of a confrontation is to find the truth, particularly to ascertain if a
participant is lying, forgetful or mistaken. It is thought to be both effective and fairer
to an accused. See Sheehan, supra n. 4, at 55-6 and his example of a confrontation at
199-201. See also Frase, "How and Why,"supra n. 4, at 589 n. 274.
572
THE AMERICAN JOURNAL OF COMPARATTVE LAW
[Vol. 45
torily to accusations during the investigation in the French system

are generally more serious than for an accused failing so to respond
a t the trial in the adversarial system.
(fl Official experts

The experts used in the present case were inscribed on lists
maintained by the courts. Except in exceptional circumstances, only
such experts can be used for the purposes of any investigation.lo4 As
indicated above there is a national list of experts maintained by the
cour de cassation in Paris and there are regional lists maintained by
the cours d'appel in the jurisdictional regions into which France is
divided. (The cour d'appel for the region which included Le Mans
was located in Angers.) To be enrolled on these lists experts have to
be acceptable to the courts indicated and the procureur-gknkral attached to those courts. Educational qualifications and experience are
required for listing, which appears to bring professional and social
prestige to those listed. Experts under this system are expected to be
neutral and impartial, to serve science rather than the parties, but
they are used in the process of law enforcement and would be likely to
share the values of the agencies of law enforcement. The reports of
the experts used in this case contributed significantly to the conclusions reached in the investigation and a t the hearing, particularly the
reports of the ballistics expert and the psychologist. The conclusions
of those experts were uncontested by other experts and they were not
seriously challenged by the defense lawyer. If there is a conflict between experts resolution of that conflict can and should be sought by
reference to other experts on the lists, normally during the investigationlo5 but also, if necessary, a t the hearing.106
All this differs significantly from the use of experts in adversarial
procedures. There the prosecution and the defense seek out their respective experts and those experts are used to support competing positions. Experts are expected to be partisan rather than impartial
and to help establish the case of the side employing them. On contentious issues in areas of expertise there will be conflicting evidence,
often technically complex and difficult for non-experts to understand.
The jury or other tribunal of fact will have to resolve the conflicts
between the experts to reach decisions on those issues. The adversarial system militates against any intervention by the trial judge by
way of seeking out and calling experts who may be seen to be impartial.lo7 Nor would the trial judge generally have available the means
104. CPP art. 157.
105. CPP art. 167.
106. CPP art. 168.

107. There is occasional judicial support for trial judges calling witnesses, particularly on scientific questions. See, e.g., Deane 3. in Kingswell v. R (1986)60 A.L.J.R.
19971
573
to know who were the best, impartial experts to consult and call. In
addition there is the problem that experts should be asked to address
the issues of concern during the investigation rather than at, or even
just prior to, the trial. There is also a problem of equity in the use of
experts in the adversarial system. The prosecution is generally better resourced and has better access to experts (ofken also in government employ) than the defense, so the prosecution generally has an
advantage in the battle of the experts.
Although the French way with expert evidence may not be capable of outright adoption by the adversarial system, some relief for the
jury from their onerous obligation as adjudicators in the battle of partisan experts could be suggested from a consideration of the French
way. A jurisdiction-wide panel of experts could be accredited by the
courts whose fees would come from public funds and whose members
would normally be called upon by both prosecution and defense to
report and give evidence on matters of expertise. There could also be
established a publicly-funded, jurisdiction-wide laboratory available
to any expert on the panel for scientific tests. Alternatively, trial
judges could be given the power in appropriate circumstances to call
independent experts in an endeavor to resolve conflicts between experts for the prosecution and the defense.108
(g)
Civil parties
There were 16 civil parties represented at the hearing in this

case. Twelve of those had been nominated during the investigation,
the remaining four a t the hearing. All but one were related to the
deceased and that one, the accused's wife, had been a victim of the
shooting. She had also been much affected by the killing of the deceased.lOg The civil parties through their lawyer did not appear to
have any input into the investigation although the lawyer was present at the re-enactment and the confrontation. At the hearing on the
criminal charges the lawyer stressed the deleterious effect the accused had had on his wife's life, both during the marriage and when
she had at last found a man (the deceased) who could be tender towards her. The lawyer suggested a long period of incarceration for
the accused, in part to neutralize the threat he still posed to the lives
of his wife and children.
17 at 32, and Mr. Justice Sheppard, ''Court Witnesses -A Desirable or Undesirable
Encroachment on the Adversary System?,"56 A.L.J. 234 (1982).
108. For arguments against and for the adoption of French-style neutral experts in
adversarial systems see Howard, 'The Neutral Expert: a Plausible Threat to Justice,"
(1991) Crim. L.R. 98, and Spencer, "The Neutral Expert: an Implausible Bogey,"
(1991)Crim. L.R. 106. See also McKillop, "Forensic Science in Inquisitorial Systems
of Criminal Justice,"7 Current Issues in Criminal Justice 36 (1995).
109. All those who have "personallysuffered damage directly caused"by a criminal
offence may become civil parties: CPP art. 2.
574
[VO~.
45
After the judgment and sentencing on the criminal charges and

with the jury no longer involved the lawyer for the civil parties
presented claims for damages on behalf of her 16 clients. These
claims were not for economic or financial loss but for "moral prejudice". The lawyer for the accused made brief oral submissions about
those claims, and after a short adjournment the President announced
the awards made by the court to each of the civil parties. Thus the
two roles played in this case by the civil parties, through their lawyer, were in addressing the court on the effect of the accused's behavior upon them (or a t least upon the accused's wife) and in claiming
damages for the "prejudice" they had suffered as a result of that
behavior.
The civil party system puts the victim of crime (or any person
"damaged" by the crime) into an adversarial position as regards the
accused for the purposes a t once of criminal and civil justice. Despite
this the system is generally not to be found in modern adversarial
criminal justice systems, where the victim is little more than a witness for the prosecution and must take separate proceedings for compensation. Nor is the system likely to be welcomed by the two
adversarial players. The defense would resist the introduction of a
second opponent focussing on the harm done to the victim or victim's
family by the accused and adding the distraction of a civil claim for
damages to the criminal proceedings. The prosecution would also
have concerns about the intervention of a third party in the processes
by which the prosecution adduced evidence, both from its own witnesses and by the cross-examination of defense witnesses. The treatment of victims in adversarial criminal justice systems has, however,
emerged in recent times as a matter of concern. This concern does
not seem to have led to any serious consideration being given to the
introduction of a French-style civil party system. Rather, to give
some voice to victims in expressing the harm experienced by them a t
the hands of an accused, schemes allowing victim impact statements
to be presented to sentencing courts have been developed.110 To ameliorate the difficulties and costs involved in keeping civil proceedings
separate from criminal proceedings where both concern the same
wrongdoing, criminal injuries compensation schemes have been set
up to allow civil claims to be pursued in connection with criminal
prosecution^.^^^ These schemes are generally funded by the state
with ceilings on the amount of compensation payable.
110. For example, in South Australia under the Criminal Law (Sentencing) Act
1989, s. 7,and in New South Wales under the Victims Rights Act 1996.
111. For example, in New South Wales under the Victims Compensation Act 1987.
19971
(h) The position of the accused

(i) The accused as a source of information
The accused in this case, from the time of his arrest as the suspect through to the hearing, was treated as someone in possession of
knowledge important to the disposition of the case. He was held by
the local gendarmerie for 43 hours in a garde a vue and interrogated
on and off over that period, including being confronted by the three
main witnesses to the shootings. He made no admissions during this
period, which led the gendarmerie to note that it was "impossible to
obtain a coherent reply" from the accused and that he remained "imperturbable before the seriousness of the facts". The Commander of
the gendarmerie a t Le Mans who gave evidence a t the hearing referred to the exceptional "defiance" of the accused during the garde a
uue. The accused was clearly regarded by the gendarmerie as unusually uncooperative in their pursuit of the truth.
It was not until the accused was brought before the investigating
judge that he admitted being a t the scene and shooting with his shotgun (four shots through the door) and his revolver (two shots into the
air to frighten his wife). When the ballistics expert later reported
that a shot had been fired a t point blank range into the leR side of the
deceased, the accused was brought before the investigating judge for
his response, which was that he had fired no such shot and that he
did not even see the deceased when he entered the house or any person a t all in the hallway where the deceased was. When interrogated
further about the revolver shots, the accused admitted that he had
fired a third shot, not into the air, which had hit his wife in the back
of the head, but that he had no intention of killing her.
At the hearing the accused was closely interrogated by the President about the inconsistencies between the accused's version of
events and the version taken to be established by the eye-witnesses
and the experts. The improbabilities of the accused's version (regarding the shots fired with the shotgun and the failure of the accused to
have seen the deceased in the hallway, for example) were pointed out
in an endeavor to have the accused confirm the established version.
It is apparent that the accused was expected, both during the
investigation and at the hearing, to divulge what he knew about the
relevant events to complement the version otherwise established.
This would have allowed the full truth about those events to be made
manifest.l12 The failure at the beginning to divulge anything and
later to divulge fully was treated as an avoidance by the accused of an
112. For some modern epistemological concerns about the "manifestation of the
truth," so central to French criminal justice, see Jackson, T w o Methods of Proof in
Criminal Procedure," 51 M.L.R. 549 (1988).
576
THE AMERICAN JOURNAL OF COMPARATNE LAW
[Vol. 45
obligation to contribute information within his knowledge to the common endeavor of establishing the truth.
It would hardly be accurate to describe an adversarial accused as
an information source. The adversarial system is posited upon the
prosecution having to prove the guilt of the accused without the accused having to assist.113 The accused has a right to silence, incorporating a privilege against self-incrimination, and is to be presumed
innocent until proved guilty by the prosecution. Investigating police
will generally seek a statement if not a confession from a suspect but
the suspect need not say anything and should be so informed by the
police. If a confession is made it will often be consequent upon a belief by the suspect that the police have enough evidence for a conviction apart from the confession. Sometimes it will be because the
police have by one means or another induced a confession seeking
thereby to bolster their case or to avoid a fuller investigation,
although such a confession may well be excluded from evidence at
trial. At trial the accused can avoid being questioned or having to
provide any information to the court. In addition the law tries to protect the accused from having the exercise of the right to silence, both
before and a t trial, used against him or her at the trial.ll4
(ii) A right to silence?
The accused in this case was interrogated by the gendarmerie,
the investigating judge and the President of the cour d'assises. He
responded to all of them though he made no admissions to the gendarmerie. He was not told by the gendarmerie or the President that
he did not have to answer their questions or to say anything. The law
does not require that he be so told. The investigating judge a t the
"first appearance interrogation" did so warn the accused, as the law
113. One commentator has suggested that the reliance on confessions as evidence
amounts to a negation of the notion of an English trial which should rely only on
primary and direct evidence given in court "in the light of dayn rather than on "proceedings effectively conducted in the dark purlieus of a police station": C.J. Hamson,
The English Trial and Comparative Law 27 (1955). See also Van Kessel, "The Suspect as a Source of Testimonial Evidence: A Comparison of the English and American
Approaches," Hustings L.J. 1, a t 2-5 (1986).
114. In Australia and the United States this is generally sought to be achieved by
excluding evidence of silence during police interrogation, a t least after a caution has
been given, and by prohibiting comment on the accused's failure to give evidence at
trial. For Australia see A.L.C. Ligertwood, Australian Evidence 242-53 (2nd ed.
1993). For the United States see Rudolph B. Schlesinger, Hans Baade, Miqan
DamaBka & Peter Herzog, Comparative Law 486-90 (5th ed. 1988) (noting the skepticism of Schlesinger in his article there partly reproduced about the efficacy of the
prohibition on judicial comment), and Van Kessel, id. at 10-15. Restrictions on comment have recently been removed in the United Kingdom by the Criminal Justice and
Public Order Act 1994, both as regards silence pre-trial (s. 34) and a t trial (s. 35) and
modified in Australia by the Evidence Act 1995 (Commonwealth of Australia and New
South Wales) s. 20.
19971
577
required,115 but does not appear to have so warned the accused at

subsequent interrogations, the law not expressly so requiring. The
warning at the first interrogation failed to have any effect as then for
the first time some admissions were made.
The accused, of course, could have declined to answer any questions, both during the investigation and at the hearing. This did not
happen and apparently it happens very rarely in France. Why is
this?
One explanation is in terms of the "centuries-old tradition of inquisitorial proceedings" in consequence of which an accused "almost
never would conceive it possible not to submit" to interrogation.l16 A
related explanation might be that the accused feels obliged to cooperate with officials in the manifestation of the truth of events in which
he or she was involved.
Another explanation may flow from the fact that an accused,
both during the investigation and a t a hearing, is obliged to submit to
interrogation. An accused under a garde a vue is available to the gendarmerie or the police for up to 48 hours for the purposes of interrogation, an accused must attend at the office of the investigating judge
for questioning when required to do so, and an accused must submit
to the interrogation of the presiding judge at any hearing.l17 It is
much more difficult to maintain silence under such conditions than it
is under the adversarial system where powers of detention by the police for interrogation are generally more restricted and where an accused is not obliged to give evidence and so be subjected to
interrogation.
A more fruitkl explanation, in my view, has to do with the inferences that may be drawn from the silence of an accused. The law
prescribes that the judges and jurors ask themselves, when deliberating upon their verdict, "what impression the means of defense have
made upon their reason".118 If an accused does not respond, or responds partially or implausibly, to incriminating evidence, the effect
upon the minds of the judges and jurors is very likely to be adverse to
the accused. Where the legal culture encourages responses to offficials and where responses are thus expected, it is not,difficult for
courts to draw adverse inferences from the silence of accused persons,
or more particularly the failure to respond to official questioning.
The legal culture in France would not support a rule, as in some common law jurisdictions, prohibiting comment by a judge or a prosecutor to a jury on the failure of an accused to answer questions from the
police or to give evidence. Certainly at hearings in France it is not
115.
116.
117.
118.
CPP art. 114.
Steph4n, supra n. 87, at 190.
CPP art. 328.
CPP art. 353.
578
[Vol. 45
uncommon to hear the presiding judge inform an accused who is silent or prevaricating under interrogation that the court will draw its
own conclusions from such behavior.llg
To what extent, then, does an accused in France have a right to
silence, or a privilege against self-incrimination. It is generally asserted that there is such a right or privilege.120 It is based, somewhat
tenuously, on two articles of the CPP - article 62 allowing the police
(to do no more than) to bring a person who refuses to answer their
questions about a flagrant offense before a prosecutor, and article 114
requiring the investigating judge to notify a defendant a t the first
interrogation that he or she is free not to make any statement. These
provisions are not likely to subvert the culture of response rather
than silence nor impede the drawing of adverse inferences from
silence.121
(iii) Presumption of innocence
The accused at an adversarial trial is said to benefit from the
presumption of innocence. This means no more than if the prosecution fail to adduce sufficient evidence to prove the guilt of the accused
then the accused is entitled to an acquittal. In other words, the prosecution bears the burden of proving the guilt of the accused.122 The
presumption does not operate in such a case to establish the accused's innocence, the result is simply that the accused has not been
proved g ~ i 1 t y . lThe
~ ~ presumption of innocence has, however, acquired an emotive and symbolic value for critics of legal regimes that
do not boast such a presumption.
It is sometimes suggested that there is no presumption of innocence in the French legal system. In so far as the presumption requires the prosecution to adduce sufficient evidence to prove guilt,
the presumption cannot in those terms be properly applied to the
French system. The prosecution does not adduce evidence at a
French hearing. Such evidence as is adduced is adduced by the presiding judge, either by interrogating the witnesses or by reading from
the dossier. In that sense any burden of proof is on the court.
119. It should also be noted that an accused at a hearing who wishes to direct the
court's attention to matters in mitigation of sentence will have to forgo silence.
120. See Vouin, "PrivilegeAgainst Self-Incrimination:France," 51 J. Crim. L.C. &
P.S. 169 (1960); Pieck, T h e Accused's Privilege Against Self-Incrimination in the
Civil Law," 11 Am. J. of Comp. L. 585 (1962).
121. See, confirming this, Pieck, id. at 598.
122. Referrred to variously as the burden of proof, the legal burden of proof, the
persuasive burden of proof, and the risk of non-persuasion. This burden is to be distinguished from the evidential burden. See generally, Cross on Evidence 183-87 (Rupert Cross, et al., 4th Aust. ed. 1991) and the references there cited.
123. See DPP v. Shannon 119751 A.C. 717 at 772 and R v. Darby (1982)56 A.L.J.R.
588 at 692.
19971
579
In an extended sense it is possible to speak of a burden of proof

on the prosecution in France in that a prosecutor has overall charge
of and responsibility for any criminal investigation and the consequent production of a dossier that goes to the court for the purposes of
the proof, or the manifestation, of the guilt of the accused. All of
which means that the notion of the presumption of innocence peculiar
to the adversarial system has to be recast to point up corresponding
processes in the French system. This again involves a shift in focus
from the adversarial trial to the French investigation.
One aspect said to characterize the adversarial presumption of
innocence is the requirement of proof of guilt beyond reasonable
doubt. A similar standard of proof is required in the French system.
It is expressed as a subjective (personal) conviction ("intime conuictionn) of guilt based on the evidence.lZ4 However the evidence is put
before the court, there should be no finding of guilt in either system
unless that evidence convinces the court to the exclusion of any reasonable doubt.
(i) The personnalite' of the accused125
At the beginning of the hearing in this case the accused was interrogated about his personnalite' and witnesses were called on those
matters. There was evidence, for example, that the accused was
often violent towards his wife, but there was also evidence that he
was a hard-worker. There was evidence that eight years before the
subject shootings the accused "had taken a shotgun" to his wife and
was only prevented from firing at her by the intervention of their
elder son. The accused had no previous convictions, but if he had
have they would have been read out by the presiding judge as part of
the material on the accused's personnalite'. The facts of the case were
not broached until after these matters had been dealt with.
The "behaviour, morals, associates, family background and
means of existence" of the accused had been explored during the investigation under a commission rogatoire (curriculum vitae) issue by
the investigating judge to the Commissioner of Police at Le Mans.
The records of this exploration were in Part B of the dossier, entitled
Renseignements et Personnalitk.
There is a legislative requirement that an investigating judge
conduct an inquiry into the personnulit6 of an accusedlZ6although no
express requirement that evidence of personnalite' be adduced at the
hearing. There is a French legal adage that: on juge l'homme, pas les
faits (one judges the man, not the facts), which expresses the philosophy underlying the attention given to the accused's personnalitk as
124. CPP arts. 353 and 427.
125. What comprises personnalitd in this context is indicated in n. 19.
126. CPP art. 81.
580
Wo1.45
well as to the facts of a case. A further explanation for the attention

given to both facts and personnalite' during the investigation and a t
the hearing may be found in the practice at the hearing of dealing
with the questions of guilt and punishment together. Whatever the
explanation for treating the accused's personnalite' along with the
facts of the case, such treatment has become standard procedure in
the French criminal justice system. The procedure has its critics in
France and it has been the subject of some reconsideration recently.
The socialist government in the reforms to the Criminal Procedure
Code prior to losing power in May 1993 sought to have personnalite'
matters dealt with after the facts at hearings. This reform was, however, one of those countermanded by the conservatives on their return to power.
What is a common lawyer to make of this procedure whereby material on the accused's personnalite' is revealed to the court at the beginning of the hearing? As to matters of personal history such as
family background, education and employment record, these are matters relevant to sentencing rather than liability for the common lawyer and would be canvassed only after any conviction. Though
regarded as irrelevant to liability they would not normally be prejudicial to an accused on that question. As to evidence of bad character
(e.g., that the accused was often violent towards his wife), such evidence could not, subject to certain exceptions,127be given at a common law trial on charges similar to those in the present case. Such
evidence, categorized as evidence of disposition or propensity, is variously said to be unreliable or insufficiently probative as regards the
facts in issue, or disproportionately prejudicial.128 Evidence of the
accused's good character, on the other hand without apparent consistency, is generally admissible in common law systems on the question
of the accused's g ~ i 1 t . lThe
~ ~ French system allows evidence of both
good and bad character in the accused to go before the court at the
hearing. Both types of evidence are regarded as relevant to both liability and sentence, questions of reliability or probative value, and
127. In England and Australia the exceptions have been created by case law and by
legislation. The two main exceptions arise where an accused puts his or her character
"in issue" by adducing evidence of good character (from the cases, e.g., R v. Rowton
(1865) Le. & Ca. 520, but now oRen in legislation, e.g., Evidence Act 1995 (Commonwealth of Australia and New South Wales) ss. 110, 112) and where an accused who
has attacked the character of any prosecution witness has become exposed to crossexamination (Criminal Evidence Act 1898 (U.K.) s. 1(D and Australian derivatives).
In the United States the rules as to character evidence are not dissimilar save that
the second exception mentioned above is broader in allowing unconditional cross-examination as to bad character, including prior convictions. (See Rules 404, 608 and
609 of the Federal Rules of Evidence). In the three jurisdictions such cross-examination is, ostensibly, only as to credit.
128. See generally Ligertwood, supra n. 114, at 78-84.
129. See, e.g., Evidence Act 1995 (Commonwealth of Australia and New South
Wales) s. 110(1).
19971
581
prejudice in the case of evidence of bad character, either being disregarded or addressed for what they are worth during the deliberations
on judgment by the court. As to the prior incident when the accused
was alleged to have "taken a shotgunn to his wife, this could perhaps
be considered by a common lawyer as evidence probative of the facts
in issue (particularly whether the accused deliberately fired a shot
into the deceased on entering the deceased's house) rather than as
evidence merely of disposition or propensity, although if consideration of the matter were to be through cases requiring proof of "similar
facts* for admissibility130 then evidence of this incident would probably not be admissible were the trial at common law. The French investigators and presiding judge in this case seemed quite prepared to
draw inferences against the accused on liability from this incident.
Why is the French system prepared to use evidence of bad character and disposition while the common law system is not? If the evidence, as it is apparently regarded, is relevant to issues going to guilt
in that inferences can rationally be drawn from that evidence towards those issues, then the common law must protect accused persons from those inferences in ways the French system does not.
What are those protections and how far can they be justified? One is
said to be the requirement that the guilt of the accused be proved
beyond reasonable doubt.131 This seems to confuse the question of
the admissibility of an item of evidence with the persuasive effect of
all items of evidence that come ultimately to be considered by the
tribunal of fact. In any event the standard of proof of guilt required
in the French system is similar to that required in the common law
system. Another protection is to be found in the common law's skepticism about the capabilities of the jury. This skepticism is to the
effect that juries may not be able to draw the proper inferences from
some types of evidence, such as evidence of bad character, and may be
unduly prejudiced against the accused by that evidence.132 This view
of the jury is not without irony in that the jury is championed by
common lawyers as bringing the experience and capabilities of a
cross-section of society to the task of judging accused persons. This
view also presupposes that judges can determine when juries are
likely to be unduly prejudiced by probative material.
While there can clearly be prejudice to an accused under the
French system when prior convictions and other material evincing
bad character are indiscriminately aired at the outset of a hearing,
the arrangements at common law to protect an accused from evidence
130. See, e.g., DPP v. Boardman [I9751 A.C. 421, Peny v. R (1982) 150 C.L.R. 580,
and, more particularly, R v. P [I9911 3 All E.R. 337, Pfennig v. R (1995) 127 A.L.R. 99,
and now Evidence Act 1995 (Commonwealth of Australia & New South Wales) s. 98.
131. Ligertwood, supra n. 114, at 81.
132. Id. at 81-2.
582
[Vol. 45
of bad character that is of some probative value but prejudicial in

other respects can hardly claim to be more rational or justifiable.
The aim of this exercise has been to expose in some detail the
manner in which a case involving a serious criminal charge is actually dealt with by the French criminal justice system. This has involved laying out compendiously, perhaps tediously, the procedures
and processes involved from the commission of the offense to the
judgment on appeal. My hope is that anglophones will be helped to a
better understanding of the French system, and that this will be of
benefit to comparative criminal justice studies and particularly to the
consideration of whether procedures in the French (or Continental)
system could or should be transplanted into anglophone systems.
I appreciate that the procedures and processes described apply in
only a small percentage of all criminal cases. The way the most serious cases are dealt with in any system, however, goes far in characterizing that system. Also less serious cases, particularly in the
French system (after allowing for the absence of an investigating
judge and of a jury in less serious cases), can be seen as speedier,
more summary versions of more serious cases. Of course if my approach to understanding the French system has merit, similar studies of cases at the other two levels of the criminal courts - the
tribunal correctionnel and the tribunal de police - should be
undertaken.
Perhaps the most significant conclusion to be drawn by an anglophone from the study is that the investigation is of determinative
importance in the French criminal justice system and that the hearing or trial does little more than present the results of the investigation in public. This means, further, that the characteristics of the
investigation become the characteristics of the whole system. Thus
the dossier produced by the investigation contains the material on
which all the subsequent decisions in a case are made and provides
the link between the stages through which a case passes. The dossier
being written (or documentary) means that the system is essentially
a written one. Those who are instrumental in compiling the dossier
- the investigating judge, the prosecutor, the judicial police, official
experts - are professionals within the system who, within their respective areas of competence, work together to realize the objectives
of the system. The system is thus ultimately a bureaucratic one in
that it is characterized by trained and interdependent official operatives the results of whose activities are to be found in written records.
It could also be concluded that, partly as a result of the bureaucratic character of the investigation and hence of the whole criminal
justice system, and partly as a result of the pursuit of the objective
19971
583
that the truth of a matter be manifested, the suspect/accused is pressured to be responsive to the needs of the investigation and the system as a whole. There is pressure, in other words, to "assist the
officials with their inquiries", to provide all information relevant to
the manifestation of the truth, to participate in the realization of the
objectives of the system. Without this participation it is difficult for
the officials to close the file. A non-cooperative or an adversarial position is thus counterindicated by the system. This combination of bureaucratic endeavor and pursuit of the truth could also help to
explain why the system concerns itself with the whole person of the
suspect/accused, with his or her personnalite' as well as with the allegation of a particular offense.
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Continental Cures for American Ailments: European Criminal Procedure as a Model for
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McKillop-1997-Anatomy of A French Murder Case

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Anatomy of a French Murder Case

Anatomy of a French Murder Case

3. THE ~ S T I G A T I O N.................................... 530

(a) By the gendarmerie ................................ 530

(b) By the investigating judge fjuge d'instruction) ...... 534

(i) In relation to the facts (les faits) ............... 534

(ii) In relation to the defendant's personnalite' ...... 541

(iii)Further investigation ........................... 543

(b) Selection of the jury, call-over of witnesses. and

reading of the committal judgment .................

BRONMCKILLOPis a Senior Lecturer in the Faculty of Law. University of Sydney.

THE AMERICAN JOURNAL OF COMPARATIVE LAW

(0 Official experts ..................................... 572

(g) Civil parties ....................................... 573

(h) The position of the accused ......................... 575

(i) The accused as a source of information.. ....... 575

(ii) Right to silence ................................ 576

(iii)Presumption of innocence ...................... 578

(i) The personnalite' of the accused. .................... 579

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(a) By the gendarmerie

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shooting. He said he was a t home from 6 p.m. on 16 June except for a

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By the investigating judge Guge d'in~truction)~~

more literal investigating judge.

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pre-meditated homicide against the suspect and issue a warrant for

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On the day the investigating judge was requested to investigate

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wished any other investigations to be carried out a t the scene, to

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The defendant was brought once more before the investigating

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further the circumstances of the revolver shots fired by the defendant

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rogation of the defendant on his curriculum vitae, a commission from

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The order of the investigating judge transmitting the dossier to

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magistrate would convict but whether a jury could c0nvict.~7 The

The jury panel

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referring to the accusations against the accused of premeditated

Interrogation of the accused and the witnesses

The President next proceeded to interrogate the accused on his

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accused himself if they had any questions.63 The accused's lawyer

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of his father towards his mother, a brutality aggravated by alcohol,

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