'Grrl blogging

(Delighted to welcome back alumna Jacqueline Hodgson, who contributes this guest post)

I'd like to introduce IntLawGrrls readers to my new online venture, called, aptly enough, Jackie Hodgson's blog.
This occasional blog, the link to which joins IntLawGrrls "connections" list in the righthand column, reflects on current developments in French criminal justice as well as broader reform in comparative criminal justice. Posts so far consider reforms of the rights of suspects held for police intrerrogatio in France (here and here), paying particular attention to the impact of European Court of Human Rights caselaw in shaping this. There is also a reflection post on the portrayal of defence lawyers as corrupt, and somehow always against the interests of achieving justice, in the US television series The Wire and the French series Spiral. This was designed to stimulate thought for "The Future of the Adversarial System," a conference held this past April at the University of North Carolina at Chapel Hill.
Future posts will follow developments in France, as well as the new European Union measures that will require all EU states to put in place key procedural safeguards for suspects.
Comments, suggestions and pointers to further information always welcome!

French "constitutional thunderbolt"

In a last bit of business before summer vacation, the French Conseil constitutionnel issued a landmark decision holding that the "ordinary" regime of garde-à-vue (pre-arraignment police custody, known as GAV) is unconstitutional. The decision is not the resounding civil rights victory we might like, but it is remarkable in at least a few respects.
It is one of the first decisions based on post-hoc review, unheard of in France until President Nicolas Sarkozy's constitutional law reform package came into effect last summer. Many thought the reform would be ineffectual with respect to citizen-initiated post-hoc constitutional review because the "right" was subject to too many filters. And I doubt Sarkozy suspected his reform would result in one of the primary tools of law and order being held unconstitutional.
But voilà! 36 people subjected to garde-à-vue claimed the regime was unconstitutional, got through the filters, and and won. (See too this paper by IntLawGrrls guest/alumna Jacqueline Hodgson.)
While the Conseil didn't agree with all of the petitioners' arguments, to the French legal community's general astonishment, it declared not just 1 or 2 code provisions unconstitutional, but the entire "ordinary" regime of garde-à-vue. In so doing, the Conseil overturned its own 1993 decision, issued prior to the offending provisions' enactment, that GAV was constitutional.
In what may be considered a slap at Sarkozy's law-and-order policies (put into effect both while he was Interior Minister--top cop--under President Jacques Chirac, as well as under his own presidency), the Conseil:
► Laments the banalization of GAV: in 2009, GAV was ordered 790,000 times, an increase of more than 140% above the 320,000 GAV orders in 1993, when François Mitterand was still president.
► Notes, as controversy swirls around the proposed elimination of the juge d'instruction (prior IntLawGrrls posts here, here, and here), that fewer than 3% of criminal cases are handled by these investigating judges, such that persons are generally tried solely on the basis of the evidence gathered while they are in custody (24-48 hours under the "ordinary" regime). In addition, while the number of polices judiciaires has doubled since 1993, the requirements for becoming one of these detectives have been reduced.
After these general considerations, the Conseil addressed the more specific issues of:
► Whether GAV is incompatible with human dignity (no);
► Whether persons subject to GAV (GAVees) have effective assistance of counsel (no); and
► Whether GAVees' right to silence is sufficiently protected (no).
While GAV is necessary and not an affront to one's dignity (but see my post on the UN Torture Committee's assessment of the French penal system), the "ordinary: regime does not strike an appropriate balance between crime prevention/punishment and the exercise of constitutional rights. In particular:
► GAV may be extended from 24 to 48 hours in all cases, not just those involving offenses meeting a particular level of gravity;
► GAVees may consult with counsel for 30 minutes at the beginning of their GAV, but may not have counsel present during questioning; and
► GAVees are not notified of their right to remain silent.
While the right to remain silent seems like a fairly logical consequence of the right not to incriminate oneself, French law did not require arrestees to be notified of this right until 2000 (in the law on the presumption of innocence), and that requirement was eliminated in 2003. In this just-issued decision, therefore, the Conseil has just effectively told the government that it must reestablish the right to such notification, without which the ineffective assistance of counsel is exacerbated. The Conseil does not say that counsel must always be present during questioning, however; it merely says that a blanket prohibition, like the ability to extend GAV, is too broad.
Unfortunately, the Conseil did not agree with petitioners that allowing the prosecutor to prolong garde-à-vue violates the European Convention on Human Rights, which requires such decisions to be made by an independent, impartial judge (cases on this issue are pending in other French courts and before the European Court of Human Rights, which has so far stopped short of saying the French rule violates the Convention).
The Conseil also refrained from finding the "special" GAV regime -- established to handle terrorism, drug trafficking, and organized crime -- unconstitutional. It declined even though that regime allows for up to 6 days of garde-à-vue, in the very conditions the Conseil deemed unconstitutional under the "ordinary" regime; that is, lack of effective representation, presumption of innocence not sufficiently protected.
Moreover, the Conseil gave the Sarkozy administration 11 months (!) to rewrite the GAV laws in accordance with this decision. As a result, no GAV measures ordered before July 1, 2011, may be challenged on the basis of this decision.

Guest Blogger: Jacqueline Hodgson

It's IntLawGrrls' great pleasure to welcome Dr. Jacqueline Hodgson (right) as today's guest blogger.
Jackie is Professor of Law at the University of Warwick School of Law, Coventry, England, where she teaches Criminal Law as well as Criminal Justice and Human Rights in Europe. She's published widely on issues of criminal justice, particularly from a comparative perspective, and often draws on her own empirical research. She provides an overview of her comparative criminal justice scholarship in her guest post below.
This academic year, as the recipient of a British Academy/Leverhulme Senior Research Fellowship, Jackie's examining these issues within the framework of "The Metamorphosis of Criminal Procedure in the 21st century: A Comparative Analysis." She earned her LL.B. and Ph.D. from the University of Birmingham.
Jackie's contributions to policy reform include: her research for the Royal Commission on Criminal Justice; her current empirical study of the role of Criminal Case Review Commission, the body that investigates possible miscarriages of justice in England, Wales and Northern Ireland; and her evidence to the House of Lords Select Committee on Europe. Her monograph French Criminal Justice (2005) -- discussed in a recent guest post by IntLawGrrls alumna Susan A. Bandes -- is the 1st major empirical study of the investigation and prosecution of crime in France. Other books include the coauthored Suspects in Europe: Procedural Rights at the Investigative Stage of the Criminal Process in the European Union (2007), Criminal Injustice: An Evaluation of the Criminal Justice Process in Britain (2000), and Standing Accused (1994).

Heartfelt welcome!

In inquisitorial & adversarial systems, defence counsel's core functions before & during trial

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Although the trial is the public setting in which a criminal case is determined and so is often the focus for media comment and academic critique, the pre-trial process is at least as important, if not more important, for a number of reasons:
► First, most people’s experience of the criminal justice process does not involve a trial, but an arrest, a stop and search, or a period of detention and questioning in police custody.
► Second, for those cases that do go to trial, the nature of the evidence presented depends on the pre-trial process. As the European Court of Human Rights has made explicit in its jurisprudence -- applying, from the point of arrest and detention onward, the fair trial guarantees contained in Article 6 of the Convention on Human Rights -- the fairness of the trial depends on the fairness of the pre-trial. The right to custodial legal advice is of fundamental importance in this, as it is the key to equality of arms as well as being closely linked to the accused’s ability to exercise her right against self-incrimination. This has been underlined in recent case law such as Salduz v. Turkey (2008) and Panovits v. Cyprus (2008). At paragraph 55 of Salduz, the Court wrote:

The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

The Court added that there will need to be compelling reasons to justify such a restriction.
Doubtless, the process of judicial supervision by either a prosecutor or an examining judge will be cited as just such a compelling reason in many jurisdictions. But as IntLawGrrl guest/alumna Susan A. Bandes noted in her recent post, this overstates the role of such supervision both in theory and in practice. Prosecutorial supervision is the norm in countries such as Germany, the Netherlands. It holds sway as well in France, where, as noted in this prior IntLawGrrls post and detailed in this governmental report, President Nicolas Sarkozy is determined to abolish the more politically independent juge d’instruction. But whilst prosecutorial supervision may provide some basic oversight of and accountability for the police enquiry, it is no substitute for the role performed by the suspect’s own lawyer – and this latter is the effective defence assistance envisaged by the European human rights court.
► Third, pre-trial is important because it is inextricably linked to the trial. The character of the pre-trial process has a determinative influence upon the nature of the evidence presented at court and indeed, the decision whether or not a trial takes place at all. As I discussed in my chapter entitled Conceptions of the Trial in Inquisitorial and Adversarial Procedure (2006), under adversarial procedures, the parties are responsible for the collection and presentation of evidence, so we would expect defence counsel to have an active pre-trial role. Quite simply, if she does not gather the evidence for the accused’s case, nobody else will. In jurisdictions with a more inquisitorial tradition, such as France, the judge leads the enquiry both before and at trial – in theory at least. For this reason, the defence role is often less developed.
I argue in my chapter entitled The Role of the Criminal Defence Lawyer in Adversarial and Inquisitorial Procedure (2008), that a core defence function exists whatever the procedure. This has been recognized at trial, with the need for the accused to be represented, to have sight of the prosecution case, to have an opportunity to interrogate the evidence against her, and so on. But this is often too late. The effectiveness of that representation will depend on what goes before.
If the trial serves more as an affirmation of a pre-trial judicial enquiry, as in countries such as France, defence counsel must participate in the enquiry in order to be effective at trial. We cannot rely on the distant and bureaucratic oversight of a prosecutor to ensure the proper development of the defence case. Her different professional status and ideology can, as I've detailed here and here, can make this difficult. That fact was demonstrated powerfully, moreover, in the Outreau case, subject of this governmental inquiry into "the causes of dysfunction in the system of justice." Further support for this argument in favor of defence participation comes from the attempts of the European Union to establish universal procedural safeguards for suspects, discussed here. Unfortunately, these attempts have been resisted by countries who currently deny suspects access to legal advice during the police interrogation of the suspect.

Read On! Innocent defendants: Comparing U.S. & French criminal justice systems

(My thanks to IntLawGrrls for the opportunity to contribute this guest post, dedicated to a new foremother, on my book review forthcoming at 7 Ohio State Journal of Criminal Law (2009))

In my review of The Supreme Court on Trial: How the American Justice System Sacrifices Innocent Defendants (2008), a compelling and provocative new book by Rutgers-Newark Law Professor George C. Thomas III, I explore Thomas’s argument that the adversary system is poorly suited to protecting the innocent, and that the U.S. criminal justice system ought to adopt a number of central features of the French system.
Surprisingly few works have bridged the gap between the study of wrongful convictions and the comparative study of trial systems. As Thomas demonstrates, the comparative approach to the study of wrongful convictions is highly promising. It places several questions in sharp relief:
► If the adversary system is at fault, what aspects of it are to blame?
► To what extent are those aspects culturally imbedded, and to what extent are they amenable to reform?
► Alternatively, how much of the problem is attributable to deeply rooted cross-cultural factors that transcend national boundaries?
Such factors might include cultural and social alignments between judges and prosecutors, institutional pressures toward loyalty and cooperation, and racial and ethnic prejudice.
Thomas argues that the central problem with the adversary system is that it lacks institutions or procedures responsible for seeking the truth. My review, while recognizing that Thomas had limited space to devote to his discussion of the French system, nevertheless raises several concerns about the portrait of that system Thomas paints:
► First, there is the problem, endemic to comparative analysis, of what versions of the French and U.S. systems are being compared. Some central features of the French system Thomas describes are in flux or have changed considerably. Most important, Thomas describes a French system in which the investigative magistrate plays a central role in the truth-seeking process. As IntLawGrrls contributors Jacqueline Ross and Diane Marie Amann have described in posts here and here, the role of the investigative magistrate has diminished dramatically. In addition, as Ross and Warwick Law Professor Jacqueline Hodgson, have described, the investigative magistrate in practice does not appear to be as neutral and independent as his official description suggests. (See Jacqueline Hodgson, French Criminal Justice: A Comparative Account of the Investigation and Prosecution of Crime in France (2005) (right), and Jacqueline Ross, "Review of Hodgson," 55 Am. J. Comp. L. 367 (2007).) This problem is exacerbated by the weak role of the defense attorney (a role that is justified by the strong and independent role of the investigative magistrate).
► Second, there is the question of how certain attributes of the French system could be adopted in the United States. For example, how could the investigative magistrate role, even in its “ideal” form, be implemented in the United States, with its deeply rooted culture of decentralized judicial selection, and given the current reality of widespread plea-bargaining?
Interestingly, the most intriguing reform Thomas proposes is inspired by the British system: the proposal that advocates serve, from time to time, as both prosecutors and defense attorneys. The bottom line: the book is highly recommended, and it illustrates the need for additional comparative study about what causes wrongful convictions and how to prevent them.