Proof in French criminal law

The burden of proof and the principle of the presumption of innocence

The principle of the presumption of innocence is determining here, it is on him that the mode of the proof is built. It poses the principle according to which (like in parallel in civil law and administrative law), it is to the applicant to bring the proof (thus with the charge). The principle remains relative since the need implies it: the proof must remain with the range of the charge, there thus exist presumptions of culpability and the procedure also calls in question this presumption of innocence in order to allow a research of the simpler proof (police custody etc…) This part on the proof and the presumption of innocence, essential in this article, remains to be supplemented.

Principle: the freedom of the proof

Article 427 of the Criminal procedure code lays out: " Out the cases where the law has which it differently, the infringements can be established by any mode of proof and the Juge decides according to his inward conviction. The judge can base his decision only on evidence which is brought to him during the debates and contradictorily discussed in front of lui"

This article first of all poses like principle the freedom of the proof. It is a principle which is valid in front of all the repressive courts and which means that all evidence is admissible in front of the judge such as the indices, the consents, a writing (attention however, the writings are sometimes the only admissible modes of proof in particular as regards contract), a testimony… It cannot have préconstituée proof in theory there. There are obligatory modes of proof like the statements as regards infringment (Article 537 CP). But jurisprudence is hostile with this limitation and accepts it only when the law envisages it expressly.

Limit: the legality of the proof

Legality is expressed by general principles of the right which lie primarily in the respect of human dignity and that of honesty. This principle relates to the way in which the evidence is required

Three types of processes are prohibited: those contrary with the rights of defense, human dignity, and the processes unfair.

Prohibition of the modes of contrary proof to the rights of defense

The rights of defense are devoted in article 8 of the Déclaration of the human rights and the citizen of 1789 and in article 6 of the European Convention of the human rights. It is interdict to furnish evidence obtained in violation of the rights of defense.

But jurisprudence admits sometimes some limiting. It authorizes in particular the possibility of listening to the phone conversation maintained between a lawyer and his customer if the purpose of it is to bring the proof of the participation of lawyer in the infringement. (Case. crim. March 12th, 1992)

Prohibition of the modes of contrary proof to human dignity

The right to the respect of human dignity imposes that the evidence reported to the criminal trial was not obtained in violation of this right. This right is protected to the international level by article 3 from the European convention from the human rights which lays out that " No one cannot be subjected to torture nor to sorrows or inhuman treatments or dégradants.". It is also a general principle of the criminal law at the national level.

The respect of this prohibited right, on the one hand, obtaining evidence by violence of any nature that it is. It is an absolute prohibition which addresses above all to the public representatives of authority (police violences), but also with the private individuals.

In addition, one also excludes the recourse to certain scientific processes to obtain evidence and which would be contrary with human dignity. These processes are rejected insofar as they force the will of the individual who is thus not free. Among these processes, one thus excludes the polygraph or lie detector, narcosis (narco-interrogation after injection of the penthotal says truth drug), the narco-interrogation met does not call into question the validity of “narco-diagnostic” i.e. the use of narcosis within the framework of an medical expertise to make the light on the personality of the subject. (Case crim December 12th, 2000; November 28th, 2001).

On the other hand, one admits the processes intended to prove the reality of an infringement or the identity of the delinquent. Among these processes, one finds the identification of the delinquent by photography, the implication of a person by the genetic analysis (article 16-11 of the Civil code), the establishment of telephone persecutions by the use of apparatuses which make it possible to raise the numbers calling a line, the proof of the excess speeds per radar (tachometer), the proof of the state of intoxication by analysis of blood alcohol content.

Prohibition of the unfair modes of proof

See too

References

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