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Comparative Criminal Justice As a Guide to American Law Reform: How Do the French Do It, How Can We Find Out, and Why Should We Care?

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Comparative Criminal Justice As a Guide to American Law Reform: How Do the French Do It, How Can We Find Out, and Why Should We Care? Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 1990 Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do it, How Can We Find Out, and Why Should We Care? Richard Frase University of Minnesota Law School, [email protected] Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles Part of the Law Commons Recommended Citation Richard Frase, Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do it, How Can We Find Out, and Why Should We Care?, 78 CAL. L. REV. 539 (1990), available at https://scholarship.law.umn.edu/faculty_articles/456. This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. California Law Review VOL. 78 MAY 1990 No. 3 Copyright © 1990 by California Law Review, Inc. Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do It, How Can We Find Out, and Why Should We Care? Richard S. Frase TABLE OF CONTENTS I. Introduction: Literature Review and Proposed M ethodology ............................................ 545 II. Selection, Training, and Supervision of Police, Prosecutors, and Judges ................................. 553 A . Police .............................................. 554 1. High-Level Police Authorization Rules ........... 555 2. Police-Prosecutor Relations ...................... 557 B. Prosecutors ......................................... 559 1. Hierarchy ....................................... 559 2. Training ........................................ 561 3. Career Tradition ................................ 563 C. Judges .............................................. 564 1. Hierarchy ....................................... 564 2. Training ........................................ 566 III. Scope of the Criminal Law: Varieties of Decriminalization ....................................... 567 IV. Restraints on Evidence Gathering ........................ 573 A. Overview of French Investigatory Powers and Exclusionary Rules ................................. 574 B. Comparison of American Police Powers and Exclusionary Rules ................................. 576 CALIFORNIA LAW REVIEW [Vol. 78:539 1. Probable Cause Requirements ................... 577 2. Warrant Requirements for Arrests and Searches.. 578 3. Stop and Frisk Rules ............................ 580 4. Miranda Rights During Police Interrogation ..... 581 5. Right to Counsel at Line-Ups .................... 585 6. Exclusionary Rules .............................. 586 7. Other Police Investigative Powers ................ 589 C. Comparative Crime Control Effectiveness ............ 590 V. Arrest and Pretrial Detention ............................ 594 A. Overview of French Arrest and Detention Procedures ............................... 595 B. Arrest Rates ........................................ 597 C. Pretrial Detention Rates ............................ 599 D . D iscussion ......................................... 601 1. Prosecutorial Screening and Supervision .......... 602 2. An Explicit, Functional Approach to Detention Authority ....................................... 602 3. No Arrest or Pretrial Detention in Minor Cases.. 605 4. Possibility of Trial in Absentia ................... 606 5. Broader Admissibility of Documents and D epositions ..................................... 608 6. Less Severe Sentencing Laws and Practices ....... 608 7. Other Explanations .............................. 609 VI. Prosecutorial Charging Discretion ....................... 610 A. The Decision Not to File Any Charges or to Dismiss All Charges ........................................ 612 B. The Decision to Decline or Drop Additional Counts or Charges .................................. 617 C. The Decision Not to File More Serious Charges or to Reduce Charge Severity .......................... 621 D. Decisions to Prosecute .............................. 625 VII. Plea Bargaining and Its Analogues ....................... 626 A. French Charge Bargaining .......................... 628 1. Vertical Charge Bargaining (Correctionalization) . 630 2. Horizontal Charge Bargaining ................... 634 B. French Sentence Bargaining ......................... 636 1. The (More or Less) Uncontested Trial ........... 637 2. Pretrial Release Bargains ....................... 644 3. Penal Orders, Scheduled Fines, and Plea Bargaining ...................................... 645 VIII. Sentencing Laws and Practices ........................... 648 A. The Sentencing Severity Hypothesis ................. 648 B. Empirical Support for the Hypothesis ............... 650 1990] COMPARATIVE CRIMINAL JUSTICE 541 C. Future Research on French and American Sentencing Severity ............................................ 658 D . Conclusion ......................................... 661 IX. Conclusion .............................................. 662 Appendix Other Important Features of the French System A. Pretrial Judicial Investigation and Review of Charges ......................................... 666 B. The Rights of Crime Victims in France .............. 669 C. Broad Pretrial Defense Discovery Rights ............ 672 D. Nonadversary, Judge-Run Trials .................... 673 E. The "Mixed Court" of Lay and Professional Judges.. 675 F. Relaxed Trial Procedures and Evidence Rules ........ 677 G. Broader Defense and Prosecution Appeal Rights ..... 682 Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do It, How Can We Find Out, and Why Should We Care? Richard S. Fraset In the 197 0s and early 1980s, legal academics hotly debated the possi- bility of basing American law reforms on continentalprocedures, but this voluminous literatureproduced few conclusions and virtually no sustained research and reform efforts. In this Article, Professor Frase argues that this stalemate was largely due to the fact that the continentalprocedures most often proposedfor borrowing were actually the least feasible trans- plants, whereas other, more modest possibilitieswere overlooked or misun- derstood. To identify the latter,future researchers must analyze foreign systems comprehensively, in practice as well as in theory, and must subject domestic systems to equally comprehensive scrutiny. Professor Frasefur- ther argues that these methodologicalprinciples are not unique to interna- tional comparisons, but rathershould guide all cross-jurisdictionalstudies, even those within a single country. Applying these principles, Professor Frase compares the American and French criminaljustice systems and concludes that the following features of the French system suggest desira- ble and feasible American reforms: more careful selection, training,and supervision of police, prosecutors,and judges; narrowerscope of the crimi- nal law; less frequent use of arrest and pretrialdetention; more effective control ofprosecutorialcharging discretion; less abusive alternativesto plea bargaining;and morefrequent use of noncustodialsentencing alternatives. Comparative criminal procedure-the study of how other countries investigate and adjudicate criminal charges-entered the mainstream of American legal literature during the decade of the 1970s. Unlike the previous works of comparative law specialists, this new generation of t Professor of Law, University of Minnesota; Visiting Professor, Faculty of Law, Universit6 Jean Moulin, Lyon, France, Spring 1982, 1986, and 1990. B.A. 1967, Haverford College; J.D. 1970, University of Chicago. I am grateful to my Lyon law colleagues, and to the many lawyers and officials with whom I spoke during my three visits to Lyon, for their advice and instruction. I would also like to thank Steven H. Goldberg, Jean-Pierre LaSalle, Robert J. Levy, Roger Park, Edward A. Tomlinson, Lloyd Weinreb, and especially Arnold Enker and Frank Zimring, for their helpful comments on earlier drafts of this Article. 1990] COMPARATIVE CRIMINAL JUSTICE research was explicitly reform-oriented. One group of writers argued that Americans should learn from and adopt specific procedures found in one or more continental European systems.2 Other writers doubted that such foreign procedures would work in the American context3 or felt they were of limited effectiveness even in Europe.' A few writers sug- gested that the American system was not really so bad,5 although the general consensus was and is that our criminal justice system is beset by serious problems of uncontrolled discretion, lack of respect for the rights of the accused, and failure to convict the guilty.6 1. One of the earliest examples of this new style of comparative research is K. DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY (1969), in which the author argued that American prosecutors should adopt the West German principle of "compulsory" prosecution. Id, at 191-95, 224-25. Another early reform-oriented work examining continental criminal justice systems is G. MUELLER & F. LE POOLE-GRIFFITHS, COMPARATIVE CRIMINAL PROCEDURE (1969). 2. See, eg., K. DAVIS, supra note 1; K. DAVIS, DISCRETIONARY JUSTICE IN EUROPE AND AMERICA (1976); L. WEINREB, DENIAL OF JUSTICE 117-46 (1977) (explaining and criticizing present criminal processes in the United States and using continental criminal procedure as a model); Langbein, Controlling ProsecutorialDiscretion in Germany,
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