Viktor Bérces: Evidence in Criminal Proceedings
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Chapter I. Paradigm shifts in the development of evidence in universal law
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1.4. History of the development of French law

1.4. History of the development of French law

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The criminal justice system of the Frankish era was based on a jury, whose members played a role in the evidentiary process rather than in the final decision.1 The purpose of the evidence was to establish the material truth: the jurati were not judges, but witnesses whose testimony was the central object of the investigation.

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The characteristics of French criminal procedural law up to the 13th century can be described as follows:

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  • the judge could not act in the absence of an accuser (accusation system);
  • the most important means of proof were the oath and the judgment of God;
  • the role of the judge was limited to enforcing the procedural rules with the parties and determining the outcome of the duel or other divine judgment;
  • there was no right of appeal, but a complaint could be made to the overlord against a judge who had ruled unjustly.
 

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By the time of feudal absolutism, the court’s leading role had increased. The importance of fact-focused witness testimony became paramount, while torture continued to be a frequently used method of evidence. From the early 13th century onwards, proceedings for major substantive offences were tried by a royal high court composed of lords, while everyday litigation was judged by university-educated magistrates of lower origin.

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From the 16th century onwards, the right to initiate proceedings was completely “taken out” of the hands of the victim and transferred to the prosecutor and the judiciary. At the same time, the position of the victim became similar to that of the witness, rather than that of the accuser. While the written form was given priority, the rights of the defence were restricted for a long time.

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From this period, it is necessary to highlight in particular the theory of certainty of Descartes (1596–1650): the author saw the possibility of achieving absolute certainty in the deductive method, modelled on the proof used in geometry, which he formulated as a requirement for philosophy. Starting from the exactness of mathematical-geometrical proof, he maintained that there are no degrees of certainty, only absolute certainty, and therefore he did not accept probability itself.2 This theorem also set out fundamental expectations for the future ages regarding the certainty of judgements.

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The Code Criminelle, which came into force during the reign of Louis XIV, regulated not only criminal procedure, but also criminal substantive law. It: (1) generalised the investigative system and (2) introduced a system of evidence, under which the confession of the accused before the court and the testimony of two witnesses in agreement constituted full proof.

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The Declaration on the Rights of Man and of the Citizen (1789) was a milestone in the universal development of criminal procedural guarantees, prohibiting unlawful detention and declaring the presumption of innocence, equality before the law, nullum crimen sine lege and nulla poena sine lege in criminal proceedings. Subsequently, the Constituent Assembly adopted the Criminal Procedure Code Act, which enshrined the classic procedural principles as a rule of substantive law:

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  • equality before the law;
  • the publicity, immediacy and informality of negotiations;
  • the principle of free judicial discretion of evidence (the abolition of the bound system of proof);
  • equality of prosecution and defence;
  • the separation of the judiciary and the administration.3
 

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In the publications of the civil era on criminal procedural law, the involvement of citizens, most of them non-lawyers, in the judging process has become a general requirement. The reasons for this were primarily political, since the ‘emerging citizenry’ had a strong desire to be involved in trials for crimes, mainly of a political nature. The French model was based on a jury in each trial, which reached its decision by a simple majority (7 votes) or by a qualified majority (8 votes).4

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The Code d’instruction criminelle (1808), adopted during Napoleon’s reign, created a mixed, modern system of procedural law, using elements of the inquisitorial system. It was based on the predominance of inquisitorial elements in investigations (written procedure, secrecy, right to a limited defence and right of access to documents), but also on the requirements of publicity, openness, immediacy and adversarial proceedings in court. The Code added further classical principles to the procedural system. On this basis:

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  • no prosecution could be brought at all without a charge;
  • the court was not bound by the motions in the indictment;
  • the adjudicative forums were adapted to the gravity of the offences: jury courts for felonies, courts of law for misdemeanours and police criminal courts for misdemeanours.
 

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As regards the procedures:

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  • the investigation was initiated by the prosecutor but conducted by a special examining magistrate:5 the latter was no longer involved in the case, but he had previously interviewed the witnesses and compiled the documents on which the trial was based (division of functions);
  • the judge rendered the verdict in open court, with the assistance of a jury, on the basis of a free assessment of the evidence, while playing an active role in the taking of evidence;
  • the equality of arms, the freedom of defence and the presumption of innocence have become essential requirements in proceedings 6
 

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If the case was tried by a jury, its composition was determined as follows: a) 30 adults were summoned to the trial, from whom b) 24 jurors and 6 alternates were drawn, and c) the prosecution and defence could successively challenge anyone without giving reasons, so that d) 12 jurors and 2 alternates had to remain in the end.

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The trials were conducted in the same way as normal proceedings were until the evidence was completed, but after that, the questions from the jury were taken, rather than the speeches. They were purely factual in nature and had to be phrased in such a way that they could be answered with a clear yes or no. This was followed by the speeches, after which the presiding judge (special judge) instructed the jury on the relevant provisions of the law. After the jury retired to deliberate, the verdict was reached and then announced publicly in the courtroom. It should be noted that the jury’s verdict was not always required for the court’s decision.7

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A judgment of the French Court of Cassation (Cour de Cassation) (1836) also introduced the institution of private prosecution. The ruling stated that the prosecutor “may refrain from prosecuting if the victim is only making the accusation to vent his anger or rage, out of hatred of the offender or in order to obtain compensation at public expense in the course of the criminal proceedings, without any benefit to public order.”8
1 This later evolved into the so-called “adjudicating” jury, typical of Anglo-Saxon legal systems.
2 Az ítéleti bizonyosság elméleti és gyakorlati kérdései. [Theoretical and Practical Issues of Certainty of Judgment.] (2017) ibid. 12.
3 Kisteleki–Lővétei–Nagyné Szegvári–Pomogyi–Rácz: ibid. 464.
4 Kisteleki–Lővétei–Nagyné Szegvári–Pomogyi–Rácz (2002) ibid. 452–453.
5 It created the institution of an examining magistrate, whose task was to examine the accused and witnesses and to draw up the case file on which the trial was based. Miskolcziné (2015) ibid. 24.
6 It should be noted that even in the case of a confession, evidence could not be excluded. Kisteleki–Lővétei–Nagyné Szegvári–Pomogyi–Rácz (2002) ibid. 465.
7 For example, when a conviction is handed down in the case of a confession. Kisteleki–Lővétei–Nagyné Szegvári–Pomogyi–Rácz ibid. 462–463.
8 Miskolcziné (2015) ibid. 24.
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