Comparative Law Spring 2002 Professor Susanna Fischer CLASS 29 GERMAN CRIMINAL PROCEDURE III FRENCH CIVIL PROCEDURE March 26, 2002

German criminal trial Charges are read by state attorney Accused can then make a statement He has the right to remain silent Confessions of guilt are common But even if accused admits guilt, the court must continue the trial so that it is convinced to the guilt Court then examines accused and witnesses, experts and other information as it thinks necessary. Personal circumstances of accused and prior convictions can be raised

Evidence in Criminal Trials There are no formal legal rules requiring the judge to admit, refuse to consider, or weigh evidence in a particular way However, some evidence is prohibited as proof of guilt such as diaries (except in murder trials) or secret recordings

Conclusion of Trial State attorney sums up State attorney recommends a verdict and applies for a certain sentence Defense attorney sums up and enters formal pleas for a judgment State attorney can respond Accused can make a statement Judges retire to deliberate. Need 2/3 majority.

Verdict and Sentence When the judges have come to a decision, they come back into court and presiding judge announces the verdict and sentence and gives grounds for judgement. Detailed reasons are written at a later date

Standard of proof for Conviction What is the required standard of proof in an American criminal case?

Standard of proof for Conviction What is the required standard of proof in an American criminal case? Beyond a reasonable doubt. Is this the same in Germany?

Standard of proof for Conviction What is the required standard of proof in an American criminal case? Beyond a reasonable doubt. Is this the same in Germany? Although the statements of the standard appear lower it is similar in practice. Judge(s) must be personally convinced of guilt. All doubt must be resolved in favor of accused. Note: conviction rates are not very different in the two systems but Germany has more trials and more acquittals. German courts more often find D not guilty by reason of insanity.

Is there plea bargaining in Germany?

Only a small amount compared to U.S.

General Principles Governing French Civil Procedure What fundamental principles govern civil proceedings in France?

General Principles Governing French Civil Procedure Right to bring and defend an action (usually private parties, though judges can (rarely) take initiative to bring a case) EXCEPTION: abuse of right A 30 NCPC: right to be heard; defendants have right to dispute claim Right to a public hearing (certain exceptions, e.g. divorce, paternity, protection of privacy, wishes of parties)

Sources of Law: French Civil Procedure New Civil Procedure Code of 1975 (NCPC)

Role of the Judge in French Civil Procedure Does the judge have a greater role in French civil procedure than in the U.S. federal district courts? Than German courts?

Role of French Judges Considerable power in preliminary hearing to direct preparation of case and order disclosure of documents or responses to pleadings. Also determines when case is ready for trial. Court (huissier) usually serves claim on D No mandatory exchange of documents unless judge orders discovery Court examines witnesses

French Judgments/Dissents Where there are more than one judge in a French court (see slides on court system) can there be dissenting judgments that are published?

French Judgments/Dissents Where there are more than one judge in a French court (see slides on court system) can there be dissenting judgments that are published? No – even if there is a compromise outcome, the different judge’s views are not reported.

How Do You Commence a French Civil Proceeding?

Draft and Issue a statement of claim (need legitimate and personal interest at relevant date) Claim form must be issued by huissier (see Art. 56 NCPC). If in TGI must appoint lawyer (claim form must mention time frame for this) Claim form must be served – by post, in person (by huissier), or through D’s lawyer Can serve at person’s last known address Must file at court within 4 months or service is invalid

Claim form: France Are the required contents of a claim form similar to what must be in a Complaint filed in a federal district court?

France: Defendants defence How and when can the defendant respond?

Defendants defence How can the defendant respond? 1. Action inadmissible 2. Denial 3. Procedural irregularity e.g. failure to serve 4. Counterclaim/set off Defendant must respond within 2 weeks unless not served personally (then has 2 months)

What Happens Next in a French Civil Case?

Parties exchange pleadings – statement of each party’s claims and arguments in support Arrange, on own initiative, all relevant documents. Parties can continue to exchange pleadings until they are sure that all points have been raised. The judge will call a preliminary hearing – appel des causes. What happens at this hearing?