Both of these are true. Currently in Japan police are allowed to hold a suspect for up to 20 days without charge, plus an additional 10 days if they can show reasonable cause (the prosecutor* I talked with called it “if we really think he did it”). Suspects are not entitled to have a lawyer present during questioning.
This year new procedures were put in place to have the interrogation videotaped, but only the signing of the confession. This ensures that the police haven’t forged the confession, but does nothing to allay claims of abuse.
ETA: *he was a student of mine many years ago when I was teaching English, so his words should be taken as ‘casual conversation’ rather than ‘official policy’.
If the parties in a civil law jurisdiction are allowed to stipulate to facts (I don’t know if they actually are allowed, I’m just saying), then you could essentially have a stipulated facts trial. You stipulate to all the facts needed to prove the offense and the judge rules.
I went twice to small claim court, but my only knowledge of the proceedings of a criminal court trying petty/minor crimes comes from what I’ve seen on TV documentaries. On top of it and besides criminal courts for major crimes, we also have “administrative courts” for civil cases against public authorities with peculiar proceedings, and many specialized courts that sometimes are equally peculiar (for instance cases related to labour law are tried in first resort by non-professional judges elected half by workers and half by employers, according to a very archaic model).
Ordinarily, the “finder of fact” (judge or jury, depending) looks at the evidence and finds the facts. However, if both parties agree to stipulate to certain facts, then the finder of fact accepts those facts without further ado.
But then I don’t understand how “you could essentially have a stipulated facts trial. You stipulate to all the facts needed to prove the offense and the judge rules.” as ** MOIDALIZE** said. If the parties are in a court, they’re probably often disagreeing about some facts, not only about the law.
If we’re talking about a criminal trial, however, I must assume that it probably often happens that the defendant admit to the fact, but he’s still going to present some kind of defence, like explaining particular circumstances.
I think I don’t really get what “stipulating the facts” means. I couldn’t tell if such a concept exists in my country’s justice system, formally or informally.
However, I’ve some suspicion that a court or judge wouldn’t be held by elements that both parties agree upon, because it seems to run contrary to my understanding of the French legal “fundamentals”. An obvious example (again, assuming I understand what you mean) would be that for major crimes, the court can perfectly find the defendant guilty even when both the defence and the prosecution agree that he didn’t commit the crime, or not guilty even if they both agree that he did.
I read cases every day in which the sole question is what is the law or how does the law apply to these facts, when the operative facts are agreed upon by both parties. I’m sure it’s less common in criminal proceedings, but not unheard of.
Or arguing that the facts don’t amount to the offense – or an element thereof – alleged.
How would the matter even come before the judge if the prosecution didn’t believe that the defendant committed the crime?
The prosecution has no say in the matter. It’s an independent judge(*) who is in charge of the enquiry, and decides whether the accused should face trial or not (or more exactly, if he thinks he should, presents the case to a panel of judges who has the final say).
The prosecutor open the case, but then he’s only a party during the enquiry. During the trial itself, he isn’t in charge of proving the guilt but of representing the general interest of society. So, he can pretty much states that he believes the accused to be innocent (quite rare, but it happens, typically when the case collapses under his eyes during the trial).
And though for non-major criminal trials, he’s in charge of the enquiry and of deciding whther the accused should face trial, a principle of French law (“la plume est serve, mais la parole est libre”) mandates that he must prosecute/send to trial if ordered so by his boss, but can support whatever position he feels like supporting during the trial. A corollary being also that a prosecutor can prosecute, and his colleague, present at the trial, be in disagreement. So even when the prosecution wanted the case to go to court, the particular prosecutor present might request an acquittal.
(*) Might change soon, since a major reform is under way, but this issue infuriates me so much that I’d rather not elaborate.
I don’t know what you mean by “laying the charges” :
If you mean who decides what the defendant is charged with, it’s the judge in charge of the enquiry. But he’s not present during the trial. Except sometimes as a witness (Each time I’ve seen mentioned that this judge was testifying during a trial, it was bad news for him, the issue being doubts about the way he had conducted the enquiry)
If you mean who is in charge of the accusation during the trial : nobody. The informations about the case gathered during the enquiries are transmitted to the court in written form. The defendant, the prosecutor, the lawyer representing the victim or his family and the presiding judge can all, AFAIK, request the presence of witnesses or the presentation of other elements to the jury. The trial is conducted by the presiding judge. He has a way more active role than the judge in an American court, but he isn’t supposed to be an accusator, either. I sometimes say that an American trial is like a sport game, with the judge as the referee and a French trial like a debate on TV with the judge as the anchorman.
Not sure, but maybe you’re only referring to the investigating judge :
He’s not supposed to build a case against the accused. He’s supposed to conduct the enquiry neutrally, and on behalf of both the defence and the accusation (represented by the defendant and his lawyer and the prosecutor). He acts normally on his own initiative (when ordering a search, for instance), but also following a request by the prosecution or by the defendant or his lawyer.
He’s supposed to forge an opinion about the value of the case, and, if he thinks there are enough elements to justify a trial, he sends the case to a panel of judges (the “accusation chamber”), who decides whether or not to order the trial. He then transmits the “file” containing all the relevant informations he gathered to the criminal court (“cour d’assises”).
Perhaps this is a cultural failure on my part, not being very familiar with civil law systems.
However, my idea of a criminal prosecution is that a person representing the state (U.S. attorney, state’s attorney, county prosecutor, district attorney, grand jury, etc.) points a finger at the defendant and says “You did X, and that constitutes a violation of Y law.” Then the prosecutor and the defendant go before the judge/jury and present evidence and the judge/petit jury decides whether the prosecution has proved its case.
So who is the person in the French system empowered to say “j’accuse!” on behalf of the state and trigger the trial procedure?
In my jurisdiction (Texas), a “stipulation of evidence” generally takes the place of an allocution in a plea agreement or open plea hearing. The defendant signs and swears to a piece of paper that tracks the language of the indictment, basically admitting guilt. It’s offered into evidence at the plea agreement hearing, and if the judge finds it substantiates the defendant’s guilt (which they almost always do unless the defendant mouths off in court that they’re really not guilty), they accept it and asks if there’s a plea agreement. If there is, the judge announces whether or not is accepted (it almost always is), and if there isn’t one, the judge set if for a contested plea hearing at a future date.
If the judge in a civil law system can direct an investigation and hunt for evidence himself, then plea bargains and stipulating to facts really won’t work because there’s no way to keep certain information away from the judge. I suppose the only limit on what the judge can find out is what the police are willing and able to investigate. Of course, if the judge has a heavy caseload, he may decide not to bother searching for conclusive evidence of a greater offense if he has all the evidence he needs to convict someone of a lesser offense.
However, it sounds from what Clairobscur is saying that a “judge” isn’t necessarily what we would consider a “judge” from our perspective.
There’s an investigating judge who seems to prepare the case and then hand it over to a panel of judges. That means that that first judge is kind of like in the role of a prosecutor in the common law system. Clairobscur, would it be wrong for us to view this person (titled “judge”) simply as a member of the prosecution rather than a “judge,” as we think of one?
What I’m wondering, though, is whether there is any point at which someone formally accuses the defendant of engaging in criminal acts.
Precisely, that’s the main difference between the two systems
There’s no such person, that’s why it’s an inquisitorial system. There’s a person (the investigating judge) who enquires. However, he’s the closest thing to an American prosecutor. But contrarily to him, his job is as much to find evidences against the defendant as to find exculpatory evidences, or, for that matter, any relevant evidences. When he comes to the conclusion that “There are quite a lot of evidences that X did it”, he passes the ball to the criminal court.
Then the court examines the evidences gathered, and decides whether said evidence is sufficient to decide that X is, indeed, guilty. In practice, during the trial, the prosecutor normally act like an American prosecutor, trying to show that X is guilty. But in theory his job is to represent the interests of society, and to help determine the truth, not to prove the case. So, he can, and sometimes do, argue that X is, in fact, not guilty. Which still isn’t compelling for the court and the jury. At this point, it still can, on the basis of its review of the evidences presented, decides that everybody got it wrong, and find X guilty.
Such a situation is unlikely to the extreme, but in a couple relatively recent high profile cases, there were doubts about the jury decisions, despite the prosecutor asking for an acquital.
What I wrote above applies for serious crimes tried by a “cour d’assises” (and also for very complex cases, generally white collar crimes). For lesser offences tried without a jury, the French prosecutor acts in a way quite similar to its American counterpart (though he still doesn’t have any obligation to prove the case and peculiar circumstances could lead to him to argue against it, as I wrote in a previous post)
So, it happens in the context of a plea agreement. Since there’s no plea agreement here (except for really minor offences, and even so, only for some years), I assume there’s no “stipulation”, either.
Even in America, a prosecutor isn’t supposed to press a case if he really thinks the guy didn’t do it. The prosecution also has to turn over all their evidence to the defense (but not vice versa), so it is definitely adversarial, but it’s rigged against the prosecution. But here, he can just drop the charges and everyone walks away without a verdict.
I tried to explain it in my previous post (note that I’ve seen American dopers explain the difference better than I could). He’s not a member of the prosecution, even though he does most of what an American prosecutor would do. The main differences being that he doesn’t open the case, he is supposed to enquire neutrally and gather the evidences useful to establish the truth, not to prove guilt, he has the powers of a judge (issuing warrants, for instance), and he isn’t involved in the trial.
Actually, I think that there’s no real French equivalent of “the prosecution”. Even a French “procureur” isn’t the same thing as an American prosecutor.
That would be the investigative judge, normally upon confirmation by the panel of judges I mentioned.