By Julien Savoye
"In the United States, the goal of the prosecutor is to produce a culprit”i. This quote taken from the website of a leading news magazine in France might hurt American ears, but is no more than a platitude in a French mouth; it reflects the view we too often have of American criminal justice, portrayed as the opposite of what criminal justice should be.
Although this contempt is partly due to the American endorsement of the death penalty, which was abolished in France since 1981, it cannot be denied that a general misunderstanding of the accusatorial system also plays a large part. At the heart of this misunderstanding is the role of the prosecutor: his or her sole purpose would be to look for incriminating evidence, leaving the hard task of finding exculpatory evidence to the defense. Therefore, defendants who cannot afford a lawyer capable of doing this job may risk a terribly unjust outcome.
The French prosecutor, on the other hand, is expected to ensure that the defendant benefits from a fair and impartial assessment of the case. Prosecutors in France are members of the judiciaryii, and therefore have the duty to guarantee individual liberties according to the French Constitutioniii. Many other duties stem from this duty, among which the objectivity with which they must look at the cases they work on. Surely, the duties prosecutors have in terms of objectivity and impartiality cannot be the same in an accusatorial and an inquisitorial system.
However, the facts of the Strauss-Kahn case, as they have been dealt with by the District Attorney’s office in Manhattan, and as they would have been handled in France, show a much more complex reality. In the US, not only did the District Attorney’s office thoroughly interrogate the complainant, find reasons to doubt that her statements were true, and conclude that the case should be dismissed. It also publicly expressed principles that guided his action: “If we do not believe [the complainant] beyond a reasonable doubt, we cannot ask a jury to do so”iv read the recommendation for dismissal filed by the DA’s office, supported by its head Cyrus Vance who explained that “If we are not convinced, we cannot, should not and do not take the case to a jury.”v The DA’s office states as a rule that the likelihood of convincing a jury is not sufficient, belief that the defendant is guilty is another necessary condition to claim a conviction before a jury, just what would be expected from a prosecutor in France in terms of objectivity and fairness. Nothing more than a principle set out decades ago by the US Supreme Court: “it is as much the duty of the United States Attorney to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one”.vi
Looking at the way the French judicial system would have handled the Strauss-Kahn case, it is not obvious that the prosecutor would have been the key player in ensuring the impartiality and fairness of the decision regarding whether to bring the defendant to trial.
The impartiality that is expected from prosecutors is usually seen as fragile in practice: unlike American district attorneys, French prosecutors are appointed by the executive power, granting them independence from public opinion, electors and fund providers, but not from the appointing authority, which decides of their careers. Furthermore, the ministry of Justice closely follows the most important trials and expects local prosecutors to report back on those trials. There is little doubt that in a case such as the Strauss-Kahn case, every move made by the local prosecutor would require approval by the ministry of Justice, and a dissenting prosecutor would have a hard time having his own views prevail. Given the political outreach of the Strauss-Kahn case, a few months away from a presidential election in France, suspicious looks would undoubtedly be cast at the prosecutor’s decisions in the case.
For this reason, and also because of the nature of the facts – an alleged rapevii– and the wide media coverage, the French prosecutor in charge of the case and the ministry of Justice would probably have had no other choice than ask an independent judge, called the investigating judge, to handle the case, in order to demonstrate that it will be taken care of by an independent and impartial-looking body. As soon as this judge is in charge of the case, the prosecutor no longer directs the investigations, and his role is limited to having access to the file and asking the judge to conduct investigations that he may view as necessary, which the defense attorney can do as well. At the end of the investigations, the judge asks the prosecutor his opinion on whether he should send the defendant to trial or dismiss the case, after which the judge makes the call. In the end, an impartial and fair decision to send someone to trial can be expected in France as well. But the impartiality and fairness of the decision is guaranteed by an independent judge more than a prosecutor who has a duty of impartiality but who is also subject to the supervision of a body which may have an interest in a certain outcome.
The Strauss-Kahn case is so peculiar in many respects that one should be cautious in drawing excessively quick conclusions from the way it was handled. However, this case should at least question the way we usually view the American prosecutor in France, as well as the place of the prosecutor in our own judicial system, at a time when our political leaders contemplate transferring all investigative powers into the hands of the prosecutor.
i “Aux Etats-Unis, le procureur a pour but de fabriquer un coupable” Lepoint.fr, August 19th, 2011
ii Prosecutors in France are members of the same body as the judges: they receive the same training, and can switch from a prosecutor position to a judge position, and the other way around, throughout their career.
iii “L'autorité judiciaire, gardienne de la liberté individuelle, assure le respect de ce principe dans les conditions prévues par la loi”, reads article 66 of the French Constitution
iv The People of the State of New-York against Dominique Strauss-Kahn, Recommendation for dismissal, August 22nd, 2011
v New York Times, August 24th, 2011
vi Berger v. United States, 295 U.S. 78 (1935)
vii In France, all criminal offenses punished by a maximum of more than 10 years imprisonment, such as rape which is punished by a maximum of 15 years imprisonment, must be investigated by an investigating judge – “juge d’instruction”. However, in many cases where the facts are uncertain, the prosecutor will direct the first investigations himself and if the case appears really weak, he will dismiss it without asking the investigating judge to handle it.