Comparative Law Spring 2002 Professor Susanna Fischer CLASS 30 GERMAN CRIMINAL PROCEDURE III FRENCH CIVIL PROCEDURE March 27, 2002

Wrap-Up: German Criminal Trials Trials in Germany are often very long (2-4 years are not unusual) Some have criticized German system for inefficiency, but German criminal process was not designed for efficiency Presiding judge has considerable authority in evidence taking, not prosecutor or defendant

Wrap-Up: German Criminal Trials Proponents of the German inquisitorial system argue that defence attorney/prosector suffer from bias German Constitution plays an important role in protecting rights Lay judges play an important role in German criminal trials. Due to 2/3 requirement for conviction, lay judges can force an acquittal

More on German Plea Bargains No such thing as a plea - so how can you have plea bargaining? By means of the penal order: Strafbefehl - order of specified sentence (fines or suspended prison sentence up to 1 year) if D does not challenge - no hearing Diversion bargains - proceedings conditionally suspended in exchange for charitable payment or work

More on German Plea Bargains Confession bargains - previously arranged sentence discount for confession in open court - probably unconstitutional in U.S. (though a guilty plea would not be a problem - is that a Due Process violation?)

Back to French Civil Procedure: Appel des causes Preliminary hearing – appel des causes. Judge looks at progress of action including exchange of pleadings and disclosure of documents. Decides whether action has reached a stage when matter can proceed to court (short procedure) or whether additional work needs to be done. Usually, judge find that more preparation is needed under court supervision (long procedure).

Long Procedure If the case is not ready to proceed to hearing on the date of the appel des causes, what happens?

Long Procedure If the case is not ready to proceed to hearing on the date of the appel des causes, what happens? Goes to a judge (judge de la mise en état), who helps parties prepare for trial within a reasonable time, by answering pleadings, exchanging documents, etc. Judge tries to facilitate agreement. If parties can’t agree, judge can order parties to respond to pleadings or take necessary steps. Judge can send to trial if one party is ready and other is delaying unduly.

Long Procedure: inquisitorial and adversarial How is the long procedure both inquisitorial AND adversarial?

Long Procedure: Discovery How does French discovery differ from discovery in the U.S. district courts?

What is a French Civil Trial Like?

Judge relies primarily on written file from preliminary stage and sometimes on a report from preliminary stage The parties to French civil litigation can give evidence though often their lawyers do not cause them to do so. Judge must generally agree for live witnesses to testify Judge can permit parties to continue to debate issues until judge decides case has been fully debated

Rendering Judgment in a French Civil Trial Judge(s) formally end the hearing. May immediately give judgment, but more usually retire to deliberate Final judgment is very concise Judgment is enforceable when a final copy (une grosse) is served on the party against whom judgment is made AND time for appeal has expired without any party making an appeal

Who pays the costs of legal proceedings in France? How does this compare to the U.S.? How, if at all, are poor litigants assisted?

DEC. 2000: FRENCH LAWYERS STRIKE OVER LEGAL AID