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Crimcast is a virtual resource devoted to critical conversations about criminology and criminal justice issues. Our blogposts, twitter feeds, podcasts and other content provide an overview of trends, research, commentary and events of interest to criminal justice practitioners, academics and the general public. CrimCast is sponsored by The Center for Crime and Popular Culture, St. Francis College, Brooklyn, NY.

Filtering by Tag: France

You Believe You May Be Indicted Criminally... Would You (or Should You) Go Inquisitorial or Adversarial?

Nickie Phillips

King John signs the Magna Carta (Goodrich, 1844, History of York)

Guest post by Roger Szajngarten Based on my research, the answer is that if you feel very likely to be indicted and are guilty, but wealthy, you should go for the adversarial system. On the other hand, if you are innocent and poor, you may want to consider the inquisitorial system. The previous statement is based on my research findings regarding the grand jury in the US and the inquisitorial system in France and their respective histories, resulting in my recommendation that one of the inquisitorial system elements be incorporated within the American system.

The origin of the US grand jury can be traced back to the Vikings, the Saxons and the Franks tribes, but most directly to the relationship between King John and the English nobility, which in 1215 resulted in the enacting of the Magna Carta. Over time, the idea that a grand jury is a people’s panel necessary to indict took shape. The grand jury had been part of the American process to render justice prior to the establishment of the Constitution. The grand jury is specifically mentioned in the Bill of Rights, but was not incorporated in the executive, judicial or legislative branches. The original and current independence of the grand jury is in line with the goal to protect the innocent from the excess of the state. The grand jury has been and remains a powerful institution as it can issue subpoenas, question witnesses and prosecutors, but, most importantly, refuse to indict. However, the role of the grand jury has become perverted, and it is questionable as to whether it is still effective in protecting citizens. In effect, the prosecutor is physically present with mostly inexperienced grand jurors, preparing all the (often leading) questions to be asked from witnesses. Furthermore there are reported cases in which the prosecutor did not present all of the exculpatory evidence, used hearsay or excluded evidence not acceptable in a court in order to convince a grand jury. The famous and often quoted statement of Judge Sol Wachtler in 1985 summarizes the current situation as "Any prosecutor, who wanted to, could indict a ham sandwich.”

The U.S. criminal justice system relies on the adversarial trial with all its inherent checks and balances to address the key issue of guilt or innocence. However, since most defendants never reach the trial stage, because of the high rate of the use of plea bargaining, the values of our Constitution, which goes to such great length to protect the rights of individuals, have been weakened.

“La Loi” (The Law) by Jean-Jacques Feuchère, Place du Palais Bourbon, Paris (Daily Photo Stream, March 2008)

The French inquisitorial law system, which can be traced back to the Roman-Canonical approach, had been trending toward centralization and powerful judges. While originally there was some sort of jury system to investigate and report on fact, subsequent to the crowning of Napoleon as emperor, the inquisitorial system went further away from the jury system. The Napoleonic Code formally impaneled judges as an elite system constrained by extensive rules and regulations to ensure due process and that laws be promulgated solely by the legislative branch. Accordingly, most of the functions of the grand jury in France have traditionally been fulfilled by an investigating magistrate (juge d’instruction) as opposed to untrained citizens.

However, in contrast to the U.S., significant constitutional rights for the protection of individuals, which are often taken for granted and essential, do not exist in France. For example, there are weak exclusionary rules, police may easily detain a suspect, and only since recently an arrested suspect is immediately entitled to the presence of an attorney. Similar to the adversarial system, the initial investigation is led by the police and the prosecutor. If the prosecutor wants to pursue the case, the investigating magistrate takes over the investigation for serious and complex situations. The investigating magistrate is a professional and independent judge that acts as a neutral party between the state represented by the police and the prosecutor, and the suspect/accused and the defense counsel. The goal of the investigating magistrate is to seek the truth. The investigating magistrate, for instance, can call witnesses, retain independent experts at the cost of the state, organize confrontations, incarcerate or release suspects and he can then either dismiss a case or seek an indictment.

Reforms of the French inquisitorial system are actively being debated, including the role of the investigating magistrate. Some of the challenges originate from the European Court of Human Rights regarding individual rights protections. The reform, partially implemented, as to the role of the investigating magistrate stems from the tension between the strong Executive branch prevalent in France as well as at least one well published failure of the existing system.

I found out that both systems currently suffer from serious weaknesses and challenges in fulfilling their original mandates.  For the inquisitorial system, it is the unchecked power of an elite corps of magistrate and limited individual rights, and for the adversarial system the grand jury has become no more than a prosecutorial tool. As I have explained further in my research, the United States should build up on the investigating magistrate concept to rekindle its grand jury. States and the federal government should specifically introduce a professional and neutral judge dedicated to working with the people’s panel to fulfill its original mandate. The presence of a professional judge in grand juries would serve as a deterrent or a filter for any excesses of the state.

Roger

Roger A. Szajngarten is a current graduate student at John Jay College of Criminal Justice in the International Crime and Justice Program.  Roger is also a financial executive with almost 40 years of experience in more than 35 countries specializing in M&A, Treasury, Insurance and Entrepreneurship. Before that he studied Mathematics in Paris, France, and then earned his BSc in Aeronautical Engineering at the Israel Institute of Technology while also studying Sociology, and lastly an MBA at Columbia University. His specific areas of interest at John Jay are white collar crimes and markets regulation, as well as terrorism.

“I Will Join With You in the Order of Marriage,” and Also With You

Nickie Phillips

Bigamy Prosecutions in Late Medieval France

mcdougall

Crimcast sat down with Dr. Sara McDougall, John Jay College of Criminal Justice professor and author of Bigamy and Christian Identity in Late Medieval Champagne (2012), to discuss her book’s fascinating glimpse into decisions to prosecute bigamy in medieval northern France. Her archival research into court documents from 15th century Troyes uncovered that men, not women, were more likely to be prosecuted for bigamy and that the prosecutions were an attempt to reaffirm Christian moral order in a time of social dislocation after the Hundred Years’ War. Northern France, ahead of its time in a prosecutorial spirit that would characterize the later Inquisition, zealously regulated itself in order to be more pleasing to God.

You describe the prosecutions as a kind of “moral panic” expressed by some clergy in the area. How was this sense of moral panic conveyed in the court records? What type of court was it?

Local religious authorities throughout Catholic Europe had what was called "spiritual jurisdiction" over the communities they served. This jurisdiction included the power to prosecute moral offences, crimes involving members of the clergy, and crimes involving either sacred spaces or sacred things. As marriage counted among the most sacred things of the Catholic Church, bishops in many parts of Europe claimed the power to regulate marriages. While all of these courts operated according to the rules of canon law - the law of the Catholic Church - regional differences abounded. In some places, church courts came to operate quite aggressively to regulate moral behavior, while in other places - probably most places - church courts essentially operated only in response to a request from an accuser or complainant.

The bishop's court in Troyes was exceptionally proactive. They employed a team of trained jurists who acted as public prosecutors, as notaries, and also as quasi-police officers to investigate, collect depositions, and arrest and detain suspected offenders.

I argue that they did so out of a shared desire to reform behavior in their diocese, out of a belief that the devastating warfare and disruptions they suffered from in the fifteenth century were due to divine punishment for the sinful behavior in the community. Acting upon their legal and theological training, they prosecuted hundreds of men and women for alleged sexual offences and violations of marriage law, as well as blasphemy and violence. They also targeted scapegoats, those they considered to have committed the crimes they deemed most injurious to the salvation of souls in the community. These "worst offenders" according to their assessments, were priests who had fought as brigands and male bigamists. Similar "moral panic" is seen in other parts of France at the same time, and with different targets, such as witches.

What were some of the descriptions of punishments meted out for bigamy at the time? Were public denunciation and humiliation also important aspects of this moral panic?

Public punishment was absolutely an essential tool. The court regularly subjected male bigamists and others who they found to be guilty of the most serious offences, to public exposure, tying them by their wrists to the ladder of the scaffold in front of the cathedral on Sundays and feast days, the days in which the largest numbers of people would see their shame. The court also subjected these "worst offenders" to imprisonment, with sentences usually ranging from a month to a few years. If short, these sentences could nevertheless prove deadly, as conditions in the prison were less than ideal. These sentences were exceptional. For the vast majority of offenders, the court punished them with a fine, usually a small one.

The book explores the idea that marriage was so sacred to people in France at this time that they would go to great lengths to be married—multiple times. Tell us how this came to be the case.

sara cover

Previously, scholars usually assumed that people in most of medieval Europe did not care a great deal about marriage. If their marriages went badly, these scholars thought, people would just work out some kind of arrangement, mutually or unilaterally, separating themselves and occasionally taking up with new partners who they could not legally marry. This certainly seems to be common in some parts of Italy, as Emlyn Eisenach has shown, and probably in Spain as well. However, the work of scholars such as David d'Avray - whose work is really quite riveting and convincing - has demonstrated that in much of medieval Europe, by the mid-fourteenth and especially the fifteenth century many people came to care a great deal about marriage, for a number of reasons. Marriage had become greatly prized in medieval society. Marriage not only provided legitimacy for children - which allowed them to inherit lands and titles from their parents - it also promoted both social status and religious status. People came to believe that a married woman assumed a position of honor and respect in a community; she also helped to ensure her salvation by marrying. Men, too, assumed positions of social and religious honor by taking wives and raising families, by acting as responsible household head, charged with working towards his own salvation but also that of his wife and children. As marriage became seen as providing these things, particularly in places such as Northern France, more and more people whose first marriages had fallen apart for some reason seem to have decided that they wanted to be married to their new partner regardless of the fact that it was technically illegal to do so. They wanted God's blessing on their union, they wanted the legitimacy marriage accorded children (and even if courts found a couple guilty of bigamy they usually treated the children as legitimate, in a rather generous presumption that at least one of the parties to the marriage could have thought it was a valid marriage), and they wanted to be able to live together without shame, without rebuke from their neighbors.

The fact that more men than women were prosecuted for bigamy is a finding that challenges conventional notions of how western patriarchy operates. In a Bostonia article, you are quoted as referring to it as a kind of “useful misogyny.” Why weren’t women prosecuted more often? Were they getting a big break or might there have been informal sanctions waiting for them?

As so often the case throughout history, courts in medieval Europe punished men far more often and more harshly than women. While we might assume that bigamy would prove an exception to this rule - as would a crime like witchcraft or infanticide, typically classic "female crimes" - in fact it did not. Many women committed bigamy, remarrying after either abandoning their husbands or being abandoned by them, but did not face the same punishment that a man who did the same thing would face. Women generally paid small fines, if anything, for their bigamy, while male bigamists were subject to public punishment and imprisoned. This has, I argue, precisely to do with the "useful misogyny" you mentioned. As the court officials - and many people at the time - thought that men were more responsible and more rational than women, almost anything a woman did was not really her fault, but the fault of a man instead. Her father, husband, or lover should have kept her from wrongdoing, and if she committed some crime like bigamy, it was really the men in her life who were to blame. This misogyny, of course, is insulting, but it certainly worked to these women's advantage.

What are you working on these days? Are there more stories of scandalous behavior and colorful prosecutions to be found in medieval archives?

I am currently working on two different, related projects. One is a sort of cultural history of adultery in late-medieval France, an effort to address all the different ways in which people thought about and responded to adultery, in and out of court. There are quite a few scandalous stories I could tell - stay tuned! I am also researching illegitimate children, to try and find out more about them. We know very little about what people did about illegitimate children - how often they may have practiced abortion or infanticide, or abandoned the children, and also what they did with illegitimate children they decided to keep. We do not know what it meant for these children to be known as illegitimate throughout their lives, if indeed they were so stigmatized.

archive

This is the first in a 5-part series appearing throughout 2013 focusing on the often game-changing discoveries that come out of archival work in the realm of police, courts, and corrections.