Page:Harvard Law Review Volume 10.djvu/72

46 46 HARVARD LAW REVIEW. THE TRIAL OF CRIME IN FRANCE. THE reports of the Nayve trial at Bourges published in the daily press will have filled Anglo-Saxon readers on both sides of the Atlantic with a sense of the superiority of their own more even-handed criminal procedure as compared with the system of badgering the accused in practice among our French friends. Not to caution the prisoner against incriminating himself, but to goad him on by provocation into admissions, is not what we consider a proper part for a President of a Court of Assize to play. To interrogate the prisoner and receive the evidence of the witnesses without cross-examination is an inversion of what we deem fair towards a man whose life or liberty is at stake. Justified, however, as such reflections are, there are details of French criminal procedure which account in some measure for a state of things so abhorrent to our notions of justice, and show that the censure one is too ready to level at the absence of condi- tions familiar to us as those of the " most* elementary fair play," need some qualification. An essential fact which must be borne in mind to understand French criminal procedure is that the trial in court is not the sole judicial examination of the facts of the case. It is really only a public consecration of the result of two other trials, which have preceded it behind the scenes. The theory is that unless there is overwhelming evidence against the accused, he should never reach "an open trial at all. The jury, as it were, are only his final judge. If they acquit the accused, they reverse the decisions of two juris- dictions of legal specialists. The fight before the jury is thus practically a fight between the judges, who have already found him guilty (or he would not be in court), and the accused, who still persists in the assertion of his innocence. Before the Coitr cT Assises is reached, the prisoner will have passed through the hands of a Procureur (public prosecutor), a Jiige d' instruction (examining magistrate), the appeal judges as- sembled as a Chambre de mises en accusation (corresponding to our grand jury), and the judge about to preside at q Cotir d Assises. The business of the Procureur, apart from his civil functions, is la recherche and la foursuite of crimes, misdemeanors, and other offences. On a crime coming to his knowledge, it is his duty to