Another feature of the preliminary stages of a French criminal trial
is the manner in which the evidence which the examining magistrate
collects is made public as he collects it. The examining magistrate
receives members of the Press during the days, weeks, and often months
of his preliminary examination of the evidence, and to all intents and
purposes the evidence which has been laid before him is put at their
disposal for publication. It is very rarely indeed that an examining
magistrate in France withholds any of the evidence he collects from the
newspapers, and as each item is usually laid before the public,
commented on at length, and frequently distorted in accordance with the
views of the staff of the newspaper which reproduces it, the public try
a case while it is in process of trial, and the newspapers criticise
the examining magistrate’s conduct of the long examination and deliver
a verdict of their own before the jury have an opportunity of doing
so. These methods form part of the legal code of France, and as such,
open to criticism though they may be, are never criticised. The methods
of preliminary trial of a French criminal case present of course this
grave disadvantage, that every one of the twelve jurymen and the two
supplementary jurymen before whom the case is tried, practically hear
or read all the evidence before they see the witnesses and hear them
in court, and practically have tried and have judged the case in their
own minds, however impartial they may try to be, before they come into
court to try and to judge it.
I have already mentioned the freedom of action which the examining
magistrate enjoys in France. This is unlimited. An examining magistrate
is hampered by nothing at all in his examination of the prisoner,
or of witnesses for and against, except by the dictates of his own
conscience. As it is human nature for a man to shrink from the
acknowledgment that he has been mistaken, it is obvious that a French
examining magistrate who starts with the idea that his prisoner is a
guilty man or woman will do everything in his power, and his power
has no limit except his own conscience, to prove the guilt of his
prisoner. He may, and often does, use dramatic methods to force a
confession. He may, and often does, lie to the prisoner for the purpose
of extracting a confession. He may, and often does, misreport to the
prisoner evidence which has been given him so as to entrap a guilty
prisoner, whom he can manage to convince that the game is up, into a
full confession of guilt. There have been many cases known of abuse of
this power. It has happened before now that a prisoner, accused of a
crime of which he or she is perfectly innocent, has actually confessed
to the crime rather than endure the mental torture of the examining
magistrate’s persistent cross-examination.
Public-domain text, read in full here on John Shaqi.
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