# Napoleonic Law vs. English Common Law **URL:** \ **Category:** Factual Questions\ **Created:** [July 13, 2011, 7:47pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914 "2011-07-13T19:47:14Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Inigo\_Montoya](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inigo_montoya/32/124_2.png) [@Inigo\_Montoya](https://boards.straightdope.com/u/Inigo_Montoya)\ **Post date:** [July 13, 2011, 7:47pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/1 "2011-07-13T19:47:14Z")
What are some differences? ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [July 13, 2011, 9:28pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/2 "2011-07-13T21:28:04Z")
The main differences IMO are that : -The enquiry isn’t led by the prosecution but by an investigative judge whose job isn’t to prove the case but to find relevant evidences. More specifically, he’s duty bound to search for exculpatory evidences too. The prosecution (like the defense) can request such or such investigation but it isn’t in charge. When he has finished, he transmits all informations to the court and doesn’t take part any more in the process (in very rare cases he can be called as a witness, generally when the court thinks he has seriously botched his job and wants some splaining) -There isn’t any plea system. There will be a trial whether or not the accused admits to the crime. As a consequences, no “deals” offered by the prosecution, either. -The trial isn’t a kind of game between two sides with the judge acting only as a referee of sort, but more like a debate involving all parties, and directed by the presiding judge (there are three of them sitting). Most questions to the witnesses will be asked directy by the judge, but the prosecutor, the defense attorney, the victim’s attorney will question them too. As I recently noted, a direct exchange between the accused and a witness isn’t uncommon. Also, there aren’t prosecution witnesses and defense witnesses. -Irrecevable evidences are much more limited. For instance, expressing opinions, reporting second-hand testimonies, recounting the life of the accused are all perfectly fine. -The prosecution doesn’t have to prove the case. In fact, the prosecutor is perfectly free to request an acquital, and it does sometimes happen. In fact, prosecutor isn’t a really appropriate translation for the word “procureur”. He represents the society, not the accusation (even though, obviously, he’s most often on the accusation’s side). Even if he thinks and says that the accused isn’t guilty the trial will go on. The court has to decide regardless of the opinion of the different actors. As noted above, it’s the same if the accused admits guilt. An absurd situation where the accused would proclaim his guilt and the prosecutor would try to show he’s innocent is theorically possible. Basically, the general concept would be : instead of having one side trying to prove a case and the other side disprove it (I know the defense doesn’t have to disprove anything in Common Law system. Simplification, OK?), as much relevant information must be gathered and the court as a whole is supposed to help figure out what the truth of the case is so that the jury (that includes also the three judges) can decide on both guilt and sentence. Note that even though France is typical of the Civil Law system, there are significant variations from one country to another. Italy, for instance, has a system a bit in between Common Law and Civil Law. ---
**Author:** ![mac\_bolan00](https://avatars.discourse-cdn.com/v4/letter/m/b3f665/32.png) [@mac\_bolan00](https://boards.straightdope.com/u/mac_bolan00)\ **Post date:** [July 15, 2011, 2:45am UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/3 "2011-07-15T02:45:17Z")
now that we’re here, what’s the definition of a common-law wife and why is it(she) called that? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 15, 2011, 3:19am UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/4 "2011-07-15T03:19:52Z")
In the most general sense, a common law system is _adversarial_; a contest between two competing views. Objective truth is less important than who wins. A civil law system is _inquisitorial_; the point is to find out what the truth is. Civil law jurisdictions don’t really allow judges to make law. Judges rule solely based on the applicable legislation\*. Judges in common law jurisdictions consider not only legislation, but the earlier rulings of equal and higher courts. Most countries combine civil and common law, including the “classic” common law system, England and Wales. > [@clairobscur](#): > > -The prosecution doesn’t have to prove the case. In fact, the prosecutor is perfectly free to request an acquital, and it does sometimes happen. The prosecutor is perfectly free to request an acquittal in common law systems, too. In fact, the prosecutor can effectively grant an acquittal by dropping one or more of the charges. A prosecutor’s job is to “do justice”, not to obtain convictions. Of course, as you correctly point out, the trial would not need to continue in that case. > [@](#): > > I know the defense doesn’t have to disprove anything in Common Law system. Well, that depends. The prosecution (or plaintiff) bears the burden of proof, but if that burden is met, the defense bears the burden of _production_- tipping the balance back in their own favor. \*I gather many civil law jurisdictions now allow for judges to create law, to a degree. [QUOTE=mac\_bolon00] now that we’re here, what’s the definition of a common-law wife and why is it(she) called that? [/QUOTE] A common law marriage is one in which the parties hold themselves out as a married couple despite not having solemnized their union (ie., taken vows). The term is a complete misnomer- the practice was largely disfavored at common law- and I have no idea where it came from. ---
**Author:** ![Capitaine\_Zombie](https://avatars.discourse-cdn.com/v4/letter/c/e95f7d/32.png) [@Capitaine\_Zombie](https://boards.straightdope.com/u/Capitaine_Zombie)\ **Post date:** [July 15, 2011, 3:38am UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/5 "2011-07-15T03:38:04Z")
> [@clairobscur](#): > > -There isn’t any plea system. There will be a trial whether or not the accused admits to the crime. As a consequences, no “deals” offered by the prosecution, either. Wasnt that modified recently for “comparution immediate” trials? > [@Really\_Not\_All\_That\_Bright](#): > > Civil law jurisdictions don’t really allow judges to make law. Judges rule solely based on the applicable legislation\*. Judges in common law jurisdictions consider not only legislation, but the earlier rulings of equal and higher courts. > > Most countries combine civil and common law, including the “classic” common law system, England and Wales. You might say that the French system isnt purely civil Law to start with, but judges do “make the law” in that system. Certainly not to the extent of the Common Law systems, and normally they’re not supposed to. But there have been cases where the Legislative power did pass laws specifically to take down the Cour de Cassation’s own interpretations of the law (Cour de Cassation is our highest working court. I say working court, because our equivalent of the Supreme Court is the Conseil Constitutionnel but it isnt a sitting court. It doesnt judge cases, just makes judgment on the constitutionnality of a law before it is signed by the President after having been voted by Parliament). And then there’s the case of Administrative law which is almost purely ruled by case law (quite close to the workings of a Common Law system). So it is less a matter of principle than a matter of degree. ---
**Author:** ![constanze](https://avatars.discourse-cdn.com/v4/letter/c/f9ae1b/32.png) [@constanze](https://boards.straightdope.com/u/constanze)\ **Post date:** [July 15, 2011, 12:08pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/6 "2011-07-15T12:08:10Z")
> [@Really\_Not\_All\_That\_Bright](#): > > A prosecutor’s job is to “do justice”, not to obtain convictions. Not everywhere in the US, though - a court recently ruled that a prosecutor who actively suppressed evidence of innocence /in favor of the accused was doing nothing illegal and it was also not his duty to instruct his subordinates (all, presumably, trained lawyers who might have been expected to know this already) to turn evidence in favour over to the defense attorney. So, just as defense attorneys are not required to be awake during the trial in all US states, they are also not really required to do justice in all US states. (But based on the rules of precedence, I guess this court decision lays a new interpretation for the rest of the US). ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 15, 2011, 12:59pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/7 "2011-07-15T12:59:17Z")
Previous thread on topic: [Diff between common and civil law](http://boards.straightdope.com/sdmb/showthread.php?t=453352). In which I posted as follows: > [@Diff between common and civil law](https://boards.straightdope.com/t/diff-between-common-and-civil-law/435352/12): > > I’ll try to add a bit. > > **Historical Origins** > > The clearest way to distinguish between the two systems is their historical origins. The civil law system is by far the older legal system, dating ultimately back to the Roman Republic. As far as we can tell, it developed from a system of customary law and case-law in the Roman courts, but given the Roman passion for order and systemization, it was continually refined by various commentators into a comprehensive orderly system. The highwater mark of this effort during the late Roman Empire was the decision of [Justinian I](http://en.wikipedia.org/wiki/Justinian_I) , Emperor of the eastern Empire, to order a comprehensive study and re-organization of the law. This resulted in the [Corpus Juris Civilis](http://en.wikipedia.org/wiki/Corpus_Juris_Civilis), which is the foundation point for most subsequent civil legal systems. By the time the Corpus was produced, Roman civil law was already about a thousand years in the making - and English common law didn’t even exist yet. > > However, because of the barbarian invasions, the civil law went into a hiatus period in western Europe. There were efforts to keep it going, but the local customs of the various barbarian invaders also became part of the law. It wasn’t until the beginnings of the Renaissance that the Italian universities began to study the Corpus again in detail, and it became widely known, in the second flowering of the civil law. It began to spread throughout western Europe, as part of the new learning. > > The major exception to this pattern was England. The English common law has its roots in the customs of the various Anglo-Saxon groups that invaded and settled in England, but it really flowered under the Angevin kings. Henry II was a very strong king who centralised control in his royal government, including the royal courts. The royal courts were the place to go if you had not got justice in one of the local courts or the various feudal courts of the local lords. The royal courts, based in London, developed a single body of law, common to the entire kingdom of England, derived from the local customs. Some local customs continued to survive into modern times, but for the most part, the common law was the same throughout England. Feudal principles also had a major impact on the formative period of the common law, since the focus of the common law at that time was mainly the law of property, in particular land, which was held according to feudal principles. > > Since the common law began to develop before the second flowering of the civil law, the English essentially re-invented the wheel, but with differences based on their local customs and court systems. Like the Roman origins of the civil law, the English common law developed from the customary law and court decisions - but the major methodological difference is that the common law did not get systematised in the same way that the Romans began to systematise their law. Common law remained rooted in court decisions, not legal commentaries. That methodological difference remains one of the significant points of difference between the two systems even today. > > **Code / Non-Code** > > It’s often said that the distinguishing feature between the two systems is the existence of a code. I would respectfully disagree. There’s no doubt that the civil law tends to favour broad, systematic statements of the law, with the _Corpus Juris Civilis_ being the outstanding example. However, the _Corpus_ is not itself a legal code in the sense of a statute. Part of it was a re-statement of imperial statues, but other parts were commentaries and instructional materials. As a whole, the _Corpus_ was a comprehensive re-statement of the principles of the civil law, that has subsequently been adopted by various countries. That adoption could be by statute or by code, but it could also be by decisions of the local courts, accepting the _Corpus_ as an accurate statement of the law. > > France, for example, did not have a civil code until 1804, but its laws have always been based, at least in part, on the civil law. France was not a unified state until fairly late in the medieval period, and its constituent parts had their own legal systems, under the local feudal lords. The Duchies of Normandy, Brittany, Acquitaine, and Burgundy all had their own local laws, as did the royal territories such as the Île de Paris, which developed its own customary law, known as the _coûtume de Paris_. Each of these local areas had their own legal systems, based in part on their own customary law, with feudal accretions, as well as borrowings from the _Corpus_. Even after France had been unified, these local divisions and local legal systems continued. It wasn’t until the Revolution that there was a strong push to have a unified legal system for all of France, as part of the sweeping away of the old feudal divisions and powers of the upper classes. This movement culminated in the [Code Napoléan](http://en.wikipedia.org/wiki/Napoleonic_Code) of 1804. That was not the first civil code in Europe, but it was the most influential. > > Similarly, Lower Canada (now Quebec) is a civil law jurisdiction, but it did not have a civil code until 1866. Prior to 1866, it relied on the _coûtume de Paris_ as its statement of law, supplemented by the grand authors and court decisions. Lower Canada joined the ranks of codification in 1866, but its law had always been based on the civil law (except for a brief hiatus immediately after the Conquest). > > Another example on a civil law jurisdiction without a code is Scotland. Scotland is considered a civil law jurisdiction, although Scots law has been heavily influenced by the English common law. But Scots law has its foundations in the civil law, in part because during the numerous periods when Scotland and England were at odds, bright young Scotsman went to France and to Holland for their education, including their legal education, where they learned civil law. However, Scotland has never codified its law, so its methodology relies on case law and commentaries, in a way similar to English common law. > > **Role of Statutes / Judiciary / Authors** > > There are also differences in the way common law and civil law rank the hierarchy of legal authorities. Both systems now give primary place to statue law, although that was a major point of contention in England. That came to a head during the Civil War and subsequent Restoration period, which firmly established statutes passed by Parliament as the primary law. The primacy of statute law was established in the civil law system much earlier, during the Imperial period. > > The more interesting point is the difference in treatment between court decisions and legal authors. In the common law systems, court decisions are themselves statements of law, unless overturned by a higher court or modified by statues. In the civil law, a court decision is simply a comment on the law, deciding a particular case, but is not itself a statement of the law. > > The two systems also take a different approach to commentaries by legal academics. In the civil law, the commentaries of legal authorities, such as Ulpian or Pothier, can be considered to be statements of law. By contrast, in the common law system, commentaries by academics do not have status as statements of the law. They are simply one person’s interpretation of the law. > > Why the difference between the two? The civil law approach dates back at least as far as the _Corpus_, where the law was re-stated by eminent academics, and included commentaries by academics as authoritative statements of the law. It was also influenced by the fact that civil lawyers learned their law at universities, with the academic traditions of learned academics writing treatises. In England, common lawyers did not learn their law at the universities, during the formative period of the common law. They learned their law at the inns of court, by going to court and listening to the arguments and decisions. Treatises by academics in the common law system are thus not authoritative statements of the law. > > **Examples of Differences** > > Now, with all that said, what are the actual on the ground differences between the two systems? If you look at results in particular cases, my impression is that both systems will produce similar results in similar cases. That’s not a surprise - both systems have evolved in the western European traditions of liberalism and capitalism, so will reach similar results in cases dealing with individual rights and business matters. However, the way they reach those decisions may vary. > > For example, both systems put a lot of emphasis on freedom of contract, but have technical differences in determining if a valid contract has been made. Both systems have the concept of “consideration” as essential to the formation of a contract, but have somewhat different definitions of what constitutes “consideration.” > > Another example is the law of gifts. In the civil systems, gifts are a form of contract, and can be sued upon in court like other contracts. In the common law system, gifts are not considered a form of contract, and cannot be sued upon in the same way as in the civil system. > > Overall, though, the metaphor I use is the difference between two different types of cars. A Ford and a Honda will both get you where you want to go, and both use internal combustion, but there are a lot of technical differences under the hood, and the parts they use are not inter-changeable. > > **Northern Piper** , LL.B. (common law), LL.B. (civil law). ---
**Author:** ![muldoonthief](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muldoonthief/32/3188_2.png) [@muldoonthief](https://boards.straightdope.com/u/muldoonthief)\ **Post date:** [July 15, 2011, 1:14pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/8 "2011-07-15T13:14:03Z")
> [@constanze](#): > > Not everywhere in the US, though - a court recently ruled that a prosecutor who actively suppressed evidence of innocence /in favor of the accused was doing nothing illegal and it was also not his duty to instruct his subordinates (all, presumably, trained lawyers who might have been expected to know this already) to turn evidence in favour over to the defense attorney. Do you have a link to that ruling? Because everything I’ve ever heard about criminal law (which admittedly isn’t comprehensive) is that the prosecution is required to turn all possibly exculpatory evidence over to the defense. ---
**Author:** ![Caffeine.addict](https://avatars.discourse-cdn.com/v4/letter/c/f475e1/32.png) [@Caffeine.addict](https://boards.straightdope.com/u/Caffeine.addict)\ **Post date:** [July 15, 2011, 1:39pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/9 "2011-07-15T13:39:52Z")
> [@muldoonthief](#): > > Do you have a link to that ruling? Because everything I’ve ever heard about criminal law (which admittedly isn’t comprehensive) is that the prosecution is required to turn all possibly exculpatory evidence over to the defense. I think that he is referring to the recent case involving [Harry Connick Sr](http://articles.latimes.com/2011/mar/30/nation/la-na-court-prosecutors-20110330). That had more to do with with civil liability. Prosecutors are supposed to turn over exculpatory evidence. ---
**Author:** ![constanze](https://avatars.discourse-cdn.com/v4/letter/c/f9ae1b/32.png) [@constanze](https://boards.straightdope.com/u/constanze)\ **Post date:** [July 15, 2011, 1:43pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/10 "2011-07-15T13:43:20Z")
> [@muldoonthief](#): > > Do you have a link to that ruling? Because everything I’ve ever heard about criminal law (which admittedly isn’t comprehensive) is that the prosecution is required to turn all possibly exculpatory evidence over to the defense. [This Supreme Court ruling](http://www.nytimes.com/interactive/2011/07/03/opinion/sunday/20110703_Editorial_Annotation.html?ref=sunday) was what I was thinking of - so since it’s the supreme Court, it does apply to the whole US, right? > [@](#): > > Justice Clarence Thomas, writing for the 5-to-4 majority in Connick v. Thompson, said the D.A.’s office was not liable for failing to train its lawyers about their duty under the Constitution to turn over evidence favorable to the accused. > > The lawyers had kept secret more than a dozen pieces of favorable evidence over 15 years, destroying some. That failure to provide training, the court said, did not amount to a pattern of “deliberate indifference” to constitutional rights. > > snip > > The Thompson ruling tore down an essential bulwark for ensuring that prosecutors are properly trained, and severely diminished the right of citizens everywhere to hold them accountable. The Supreme Court’s decision to shield the district attorney’s office from having to pay a monetary award for stealing 18 years of Mr. Thompson’s life is shameful. > > Innocence Project New Orleans found that in 9 of 36 death penalty convictions while Mr. Connick was chief prosecutor, his office suppressed exculpatory evidence. It had one of the worst records in America on that score. > > The New Orleans district attorney’s office is by no means alone in its failure to ensure justice in capital cases. Failure to turn over evidence is a chronic problem. Its consequences are magnified by the government’s advantage over the inexperienced and inept defense lawyers who are often assigned to indigent defendants. Many of these violations are exposed. Many other instances may never be uncovered (I think there was also a pit thread just several days ago about this, but I can’t find it now). ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [July 15, 2011, 1:59pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/11 "2011-07-15T13:59:09Z")
> [@mac\_bolan00](#): > > now that we’re here, what’s the definition of a common-law wife and why is it(she) called that? A common-law spouse is someone who married under the common law rather than any licensing scheme. It’s not what the public tends to think. It has all the force of law that a licensed marriage does, and requires a divorce just the same to end it. 3 elements must be satisifed to form a common law marriage (at least in my state. Most states have outlawed it by statute.) 1. Capacity. You must be 18 years old, be unmarried to anyone else, be the opposite sex of your partner, you must be a resident of the state in which you are common-law married, and you must have the mental capacity to understand what a marriage is. 2. Intent. There must be a meeting in the minds of the marriage partners. You can’t accidentally become common-law married, or have it happen unawares, you both must agree to be married. It does not have to be in writing. 3. Holding out to the public: This can be carried out a number of ways. The only required one is cohabitation; without cohabitation, no marriage can occur. Other forms include: The woman taking the man’s last name; having a child; acting married in public; filing joint income tax returns; joint ownership of property. Anything that husbands and wives do, really. There is no time element as is commonly believed. A common law marriage can form as quickly as you can cohabit, but doesn’t necessarily happen after six months of cohabitation either. The idea “they’ve lived together six months, so they are common-law married,” is a bunch of poo. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [July 15, 2011, 2:06pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/12 "2011-07-15T14:06:59Z")
> [@constanze](#): > > [This Supreme Court ruling](http://www.nytimes.com/interactive/2011/07/03/opinion/sunday/20110703_Editorial_Annotation.html?ref=sunday) was what I was thinking of - so since it’s the supreme Court, it does apply to the whole US, right? It does apply to all the states and the federal government, but not merely because it was the supreme court. The S. Ct. tends to pick cases that have nationwide significance, but they do not have to. Some cases turn on a question of state law and therefore only apply to that state or states with the same law, for instance. In this case, the question involves the fifth amendment’s due process clause, and since the due process clause applies to all the states, territories, and the federal govenrment, it is a nationwide ruling. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [July 15, 2011, 2:17pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/13 "2011-07-15T14:17:09Z")
> [@constanze](#): > > Not everywhere in the US, though - a court recently ruled that a prosecutor who actively suppressed evidence of innocence /in favor of the accused was doing nothing illegal and it was also not his duty to instruct his subordinates (all, presumably, trained lawyers who might have been expected to know this already) to turn evidence in favour over to the defense attorney. > > So, just as defense attorneys are not required to be awake during the trial in all US states, they are also not really required to do justice in all US states. (But based on the rules of precedence, I guess this court decision lays a new interpretation for the rest of the US). Your summation of Connick v. Thompson is in error. The court did not find it was “ok” to withhold exculpatory evidence. They found that Thompson could not sue a local government under 42 U.S.C. §1983 for this because it was not an “official policy” to purposely undertrain prosecutors not to withhold exculpatory evidence. Thompson should have stuck to suing the D.A. personally rather than the government. I think it’s a load of horsepoo, but they did nothing to change the idea that withholding exculpatory evidence is illegal under the due process clause. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [July 15, 2011, 2:21pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/14 "2011-07-15T14:21:53Z")
> [@David42](#): > > It does apply to all the states and the federal government, but not merely because it was the supreme court. > > The S. Ct. tends to pick cases that have nationwide significance, but they do not have to. Some cases turn on a question of state law and therefore only apply to that state or states with the same law, for instance. > > In this case, the question involves the fifth amendment’s due process clause, and since the due process clause applies to all the states, territories, and the federal govenrment, it is a nationwide ruling. Ummm…I’m a little sleepy yet. It also has nationwide significance because §1983 has nationwide effect. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [July 15, 2011, 2:24pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/15 "2011-07-15T14:24:25Z")
> [@constanze](#): > > Not everywhere in the US, though - a court recently ruled that a prosecutor who actively suppressed evidence of innocence /in favor of the accused was doing nothing illegal and it was also not his duty to instruct his subordinates (all, presumably, trained lawyers who might have been expected to know this already) to turn evidence in favour over to the defense attorney. This isn’t quite right. It was unquestionably a violation of the accused’s rights for the prosecution not to turn over that evidence, and his criminal conviction was accordingly overturned. The recent Supreme Court case, however, held that the accused could not then bring a civil suit against the prosecutors for money damages based on the misconduct in that case. (The ruling was somewhat fact-specific. Under other circumstances, such a suit would be permitted to proceed). I do not know how this case would have been decided in a civil-law system. Perhaps someone more familiar with European law could describe whether or under what circumstances a wrongfully-convicted person may sue prosecutors for money damages. ---
**Author:** ![constanze](https://avatars.discourse-cdn.com/v4/letter/c/f9ae1b/32.png) [@constanze](https://boards.straightdope.com/u/constanze)\ **Post date:** [July 15, 2011, 3:05pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/16 "2011-07-15T15:05:53Z")
> [@Tom\_Tildrum](#): > > This isn’t quite right. It was unquestionably a violation of the accused’s rights for the prosecution not to turn over that evidence, and his criminal conviction was accordingly overturned. The recent Supreme Court case, however, held that the accused could not then bring a civil suit against the prosecutors for money damages based on the misconduct in that case. (The ruling was somewhat fact-specific. Under other circumstances, such a suit would be permitted to proceed). If it was not wrong of the prosecotur to withhold the evidence, then why did the Supreme Court not punish him? Why was the damaged person, the wrongly accused, not compensated? > [@](#): > > I do not know how this case would have been decided in a civil-law system. Perhaps someone more familiar with European law could describe whether or under what circumstances a wrongfully-convicted person may sue prosecutors for money damages. I’m not a lawyer, but occasionally, cases of wrong convictions turn up in the press, so I know the basics. As soon as the innocence of the accused is proven - whether it’s new evidence come to light, new techniques for old evidence or uncovering of wrong doings at the original trial - the old verdict is lifted, the person released and the state pays a compensation for the time the person spent in prison. There is a fixed table for how much one day is worth. Also, besides the difference between adversial and bench trial system explained above, the prosecuting attorney (Staatsanwalt, lit. attorney of the state) is an employee of the judiskative, called by the state, not elected by the population based on how often he has won. He’s also a proper lawyer and knows his duty is not to convict, but to find the truth. So there’s far less zeal to get a “guilty” verdict for PR reasons because there is no PR for prosecutors. It doesn’t matter if the judicative system made an intentional error or if nobody could have known at that time - if somebody was innocently imprisoned by the state, he receives compensation by the state. Seems obvious to me, and the system Cecil describes, where it not only varies from state to state, but that the victim must take active steps, go through a new trial, with a varying degree of amount of compensation, is hard for me to understand. Worst of all, that some parts of the US system can excuse themselves from ever being brought to charges for wrongdoings at all sounds … extremly wrong to me. But then, we don’t have the best justice system money can buy of the greatest state of the world, we try to have a good justice system as humanely possible. ---
**Author:** ![constanze](https://avatars.discourse-cdn.com/v4/letter/c/f9ae1b/32.png) [@constanze](https://boards.straightdope.com/u/constanze)\ **Post date:** [July 15, 2011, 3:08pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/17 "2011-07-15T15:08:59Z")
> [@David42](#): > > Your summation of Connick v. Thompson is in error. The court did not find it was “ok” to withhold exculpatory evidence. > > They found that Thompson could not sue a local government under 42 U.S.C. §1983 for this because it was not an “official policy” to purposely undertrain prosecutors not to withhold exculpatory evidence. Thompson should have stuck to suing the D.A. personally rather than the government. > > I think it’s a load of horsepoo, but they did nothing to change the idea that withholding exculpatory evidence is illegal under the due process clause. I was going by the summation in the linked article. I see nothing in there that says that the prosecutor, who missed up intentionally and several times, will in any way be held responsible, fiscally or otherwise, or be punished by removal from office, let alone anything about safeguards to prevent this in the future. This makes me conclude that it’s more of a guideline that’s nice to follow than a real rule or even a law that needs to be obeyed. If prosecutors are actually bound to turn over evidence, then why does nothing happen to them if they break the rule? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 15, 2011, 3:28pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/18 "2011-07-15T15:28:20Z")
> [@constanze](#): > > If it was not wrong of the prosecotur to withhold the evidence, then why did the Supreme Court not punish him? Why was the damaged person, the wrongly accused, not compensated? Because of sovereign immunity, which limits the liability of agents of the government. The suit was filed against the district attorney’s _office_, not the district attorney himself. It’s not an American concept; it’s present to some degree in every nation. ETA: there’s nothing in there about the prosecutor being punished by removal from office because it’s not the job of the trial court or appeals courts to remove prosecutors from their jobs. They don’t have that authority. The government will remove the offending prosecutor from office if appropriate, or his state bar association may revoke his license. ---
**Author:** ![constanze](https://avatars.discourse-cdn.com/v4/letter/c/f9ae1b/32.png) [@constanze](https://boards.straightdope.com/u/constanze)\ **Post date:** [July 15, 2011, 3:39pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/19 "2011-07-15T15:39:32Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Because of sovereign immunity, which limits the liability of agents of the government. The suit was filed against the district attorney’s _office_, not the district attorney himself. It’s not an American concept; it’s present to some degree in every nation. The office is not responsible for what their DA does? Nobody is responsible, do I understand that correctly? > [@](#): > > ETA: there’s nothing in there about the prosecutor being punished by removal from office because it’s not the job of the trial court or appeals courts to remove prosecutors from their jobs. They don’t have that authority. > > The government will remove the offending prosecutor from office if appropriate, or his state bar association may revoke his license. I meant there’s nothing in the article. If the state, whoever has the authority necessary, had noticed somewhere during this trial that this DA did something illegal, surely he would have at the very least suspended that DA, fired his ass after looking at the evidence and done everything else to undo the damage. To show that this is not ok, that this is not how things are done. Because that is what I expect of my system. Humans can screw up, and assholes can slip through everywhere, but if a law is broken, if it actually, really, is illegal to withhold evidence (and it’s proven that this DA even destroyed evidence, which goes a bit beyond withholding), then whoever is his superior in charge takes steps. That’s how a system corrects itself. Moreover, if it turns out that such an egregious miscarriage of justice (at least, that’s what I consider this to be) has gone on in not only one, but several case, I would expect whoever’s in charge in that city, or state, most certainly the minister of justice for that state, to clearly tell what measures he will take to ensure that such going-ons will be prevented in the future. Now, if you mean that this article left all that out, and the DA has been kicked out on his ass, and a new policy been implemented, than I’ll change my opinion. So far it fits right in with the other … problems in the US justice system I’ve read and heard about. ---
**Author:** ![constanze](https://avatars.discourse-cdn.com/v4/letter/c/f9ae1b/32.png) [@constanze](https://boards.straightdope.com/u/constanze)\ **Post date:** [July 15, 2011, 3:43pm UTC](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914/20 "2011-07-15T15:43:02Z")
> [@David42](#): > > I think it’s a load of horsepoo, but they did nothing to change the idea that withholding exculpatory evidence is illegal under the due process clause. If it really is illegal what this DA did - then why did nobody from his office take him to court, not for damages like the victim, but for breaking the law? Why isn’t he in prison or paying a fine of half a million for breaking the law? People who break the speeding limit get a ticket with a fine, but breaking the rules about the justice process has no consequences aside from what the victim does in civil court? [Next page](https://boards.straightdope.com/t/napoleonic-law-vs-english-common-law/588914.md?page=2)