A comparative study between the American and the French prosecutor

Introduction: Prosecution is the legal party responsible for presenting a case against an individual or a corporation suspected of breaking the law, initiating and directing further criminal investigations, guiding and recommending the sentencing of offenders, and are the only attorneys allowed to participate in grand jury proceedings.¹ An interrogation grasped my attention regarding the goal and the very essence of this peculiar office : should the prosecutor defend society’s interests or state’s interests ?

I will demonstrate in what extend the French prosecutor represents State’s interests, whereas the American prosecutor was thought to represent “Society” and defend the interests of “The People”. By comparing characteristics of the American and the French prosecutor, such as their education, the process of appointment and their respective powers, I will try to highlight the following problematic:

In what extent the French conception of justice is based on a vertical and aristocratic model whereas the American conception is based on a horizontal and democratic model?

I will present the historical causes of the divergences between the French and the American prosecutor (I) to then focus on these differences and their consequences (II). I will finally mention the critics that can be addressed to the American model of prosecution. (III)

I.The historical causes of the divergences in judicial cultures

1. The French prosecutor: a relic of royal absolutism

In France, the public prosecutor is called the Ministère public and has the responsibility for prosecuting criminal cases and representing the interests of the state in civil litigation. The ministère public is represented by agents (procureurs) in most of the courts of France, except police courts. Historically the office of the ministère public² had the traditional function to insure a monarchic control over the judicial system.

According to the French civil supreme court, the creation of the office of prosecutor dates back, to the great ordinance of Philippe le Bel of March 23, 1303 setting out the formula for the oath of people of the king and stating that the accuser of a trial must also be in charge of seeking the truth and the proper application of the law. More specifically, this institution was created in European monarchies when the king found it necessary to have representatives in courts throughout the country to protect his interests and present his views on litigation that affected the public. In early times the ministère public was also responsible for making sure that officials did their jobs and punished those who were negligent or corrupt³.

Therefore, we can notice that the French prosecutor proceeds from a vertical and downward movement. It was created by the state, which was personalised in the figure of the king, ( “ l’Etat c’est moi ”, as would say Louis XIV), to insure a monarchic control over local affairs occurring in courts. In reality the prosecutor aimed to protect the king’s interests rather than seeking “the truth” or the general interest. The french prosecutor was therefore the expression of the sprawling and centralizing monarchic power.

Nowadays, this function remains as the ministère public seeks to represent the state’s interest in trial and defend the government’s penal policy rather than the interest of “the people”. One evidence of the persistence of this historical function is the centralized and unitary structure of the french court system.⁴ Indeed, in France, public prosecution is carried out by a single office that has representatives in courts all over the country. This office is called the “ministère public”. In some countries, often being old monarchies or empires based on centralisation, such as France, Japan, and Germany, prosecutors are part of a career civil service. They are appointed and dismissed by the ministry of justice and generally subject to its control.

In Great Britain, just as in France, the prosecutor can be considered as a remain of the centralized power of the absolutist monarchy. In this way, the British attorney general and his assistant, the solicitor general, represent the crown in the courts and are legal advisers to the sovereign. They have control of the office of public prosecutions, which conducts criminal prosecutions.

On the contrary, in the United States, even though at the federal level prevails a unitary system in which a district attorney is appointed by the U.S. attorney general’s office for each federal district, states and counties have their own prosecutors.

Indeed, in most U.S. state and local jurisdictions, prosecutors are elected to office. Every U.S. state has an elected attorney general with duties similar to those of the federal attorney general. He is usually elected by the voters at the same time and for the same term as the governor. This system shows how the prosecutor represents the importance American put in values such as democracy, political representation and accountability, which are antithetical with French traditional values such as centralism and elitism.

2. Tocqueville’s contribution to understand the causes of these divergences

One of the books that inspired this reflexion is Tocqueville’s essays, Democracy in America written in 1848. In this essay the French author questions the excessive role of the French state in townships, being represented by an official deciding for the majority but also during civil process in which the state is represented a “public ministry” in charge of suing criminals in place of citizens themselves. Thanks to a comparative approach, Tocqueville stresses advantages, drawbacks, and anomalies of the French judicial system.

Tocqueville’s analysis allows to understand the cultural and sociological reasons of the differences between the American and the French judicial system. Indeed, the author shows how legal order proceeds from initial conditions of society’s creation. “Laws are habits’ daughters” says Tocqueville in chapter V. Like Rousseau⁵ already explained a century before, whereas the French nobility and the king used law to codify and root their domination over the third state, English immigrants and pioneers used law to codify their reciprocal independence and autonomy. It is the reason why township’s autonomy is so important in America. There is a sort of horizontality inherent to American society whereas French society is deeply vertical and hierarchical. “Remove the strength and independence of the municipality, you will find administrated individuals, not citizens”.

These principles of independence and horizontality prevailing in the early America as well as the centralized structure characterizing the French monarchy had different consequences on the later institutionalisation of the modern prosecutor in both countries. It explains why now a day the French prosecutor is the heir of a vertical and aristocratic conception of justice whereas the American prosecutor embodies a judicial system based on horizontality and democratic values.

II.The democratic model against the aristocratic model

Many elements highlight the democratic nature of the American prosecutor while the French prosecutor embodies an aristocratic function.

1. The American prosecutor is a lawyer while the French prosecutor is a judge.

One detail that caught my attention is the terminological blur existing in United states to qualify the in America prosecutor. Even though, a broad range of expression exists to qualify this office, the American prosecutor is generally and most often designated by the name of “attorney”: “County Attorney” for Minnesota, Nebraska and Arizona, “state’s attorney” in, Maryland, Florida, , Connecticut North Dakota, Illinois, and Vermont, “District attorney” in California, New York, Massachusetts, Texas, Pennsylvania, , Delaware, or “general attorney” for the federal level. However, the term attorney is also used to designate individuals practising the profession of lawyer. Indeed, Attorneys at law are lawyers which highlights a certain porosity between society and the state in United states. The American prosecutor comes from civil society. Throughout his private education and his private career he was able to defend cases in which interests of American citizens were at stake. He is therefore more than legitimate and qualified to defend efficiently interests of society as a whole.

On the opposite, while the American prosecutor is initially lawyer, the french prosecutor is, statutory speaking, considered as a judge. As in most civil law countries, prosecutors are considered magistrates under French law. While the defense and the plaintiff are both represented by common lawyers, who sit (on chairs) on the courtroom floor, the prosecutor sits on a platform as the judge does, although he doesn't participate in deliberation. This will lead the French prosecutor not to defend society’s interests at first, but primarily state’s interest.

The most significant element is that Judges and prosecutors are trained at the same school in France, and regard one other as colleagues. They have to pass a national exam which, if usefully passed, will open them doors for a civil servant career. One the contrary, United States is the only country in the world where prosecutors are elected by citizens. This system allows a control of citizens on the person who triggers accusations and more broadly the judicial process.

The election of prosecutors, as well as judges, allows to as many offices as possible in the hands of the people so citizens have greater control over government and prevent the creation of a permanent political elite. Consequently, to a degree unknown in other democratic systems, the American electorate votes for a huge number of local offices: coroners, sheriffs, clerks of courts, auditors, commissioners of public utilities, public university officials, and more.

It is the reason why in France, many criticisms were raised against the National school of the magistrature (l’ENM). Some scholars and commentators pointed out the problematic elitism characteristic of the French judges who constitute a narrow and opaque corporation. French prosecutors, who are statutory judges, are part of a solidary and elitist cast that can present the risk of defending its own interests rather than people’s ones. Even though the French system can claim the virtue of independence, merit and seniority It tries to confer to its prosecutors, it should not overshadow the risk of building an untouchable and aristocratic judicial elite whose interests do not correspond anymore with citizens’ interests.

This differences in the education and the appointment process of prosecutors, in one country by an independent but aristocratic national school, and in the other by democratic elections, explains why prosecution is brought in the name of the state in France, whereas it is brought in the name of the people in America.

2. Prosecution brought in the name of the people and prosecution brought in the name of the state

If the prosecutor, has similar power in France and United States, a great difference remains concerning the entity he is supposed to represent. Whereas the American prosecutor, defends American people’s interests, the French public ministry, stays fateful to the centralized and vertical French tradition, by mainly defending states’ interest.

In theory the various procureurs are supposed to represent the interests of society as a whole rather than that of the state. Yet in criminal prosecutions French prosecutors are clearly acting for the state. The decision to prosecute rests with the procureur, but he is ultimately under the control of the Ministry of Justice, which is a government and political department. This obvious political interference in the prosecution process recalls the historical function of the prosecutor as a royal servant.

In addition, the procureur général attached to the Cour de Cassation is responsible for bringing to the attention of the court decisions of lower courts that ought to be reviewed because of possible faulty interpretation of the law. In all courts, the interpretations of the procureurs have considerable influence upon the judges.

On the contrary, as judge are elected and as they come from private careers in many American states, criminal prosecutions are brought in the name of the People rather than in the name of the state. Indeed, constitutions of New York, California Colorado, Illinois and Michigan, state that criminal prosecutions are brought in the name of the People. This is a supplementary evidence that American state attorneys were constitutionally thought to be democratic institution rather than zealous civil servant of a centralized state.

III.The Drawbacks of the American model

The American prosecution system, despites its advantages, also has certain drawbacks that we should mention.

Indeed, long after prosecutors started to become elected, they became co-opted by partisan politics although the goals in ending the appointment system had been to make them independent of political patronage and partisan politics⁶. Thus, many critics have highlighted the fact that elections could subject prosecutors to political influence, but also lead them to concentrate on high-profile investigations to win favourable media coverage.

Some studies have shown that elections place pressure on prosecutors to deliver convictions instead of primarily seeking justice and favour candidates that promise to be tougher on crime, which sounds good to a majority of voters because they see themselves as possible victims of crime⁷. Moreover a phenomenon of systemic racism was stressed out : 95% of elected prosecutors are white, meaning that non-whites are not only overrepresented in the prison population but also underrepresented among prosecutors.⁸ Although, these assertions and criticisms are still the object of multiple debates, I found it necessary not to omit negative aspects of the American prosecution system.

Conclusion: the fact that America was an anti-Europe, relieved from any aristocratic heritage and absolutist legacy allowed the settlement of a tradition of collective local liberties and administrative decentralization embodied in the figure of an elected prosecutor who guarantees the democratic defence of “people’s interests” rather than the aristocratic defence of “state’s interests”.