Variable Geometry of the Principle of Loyalty of Evidence in French Criminal Procedure: Analysis and Exceptions
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French criminal procedure, loyalty of evidence, variable geometry, illicit evidence, disloyal evidence, judicial authorities, private parties, probative value, Article 427 Code of Criminal Procedure
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Abstract
Unlock the complexities of French criminal procedure with insights into the principle of loyalty of evidence, a concept that proves to be of variable geometry. Explore how this principle applies differently based on the party producing evidence, and understand the exceptions that shape its application. Discover the nuances between the loyalty of evidence produced by private parties versus judicial authorities, and learn how judges assess the probative value of potentially illicit or disloyal evidence. Dive into the intricacies of criminal procedure and the factors influencing the admissibility and evaluation of evidence, guided by key legal precedents and the provisions of the French Penal Procedure Code.
Extract
[...] The judges then show a relatively flexible approach to the production of evidence by private parties. For example, it was ruled by the criminal chamber of the Court of Cassation on June that 'constitutes a legitimate means of proof the exploitation by investigators of a recording of a cassette containing insulting remarks made by telephone and recorded by the victim who filed a complaint'. Thus, the victim can, in support of their complaint, produce evidence by exempting themselves from certain author's rights such as sound capture. [...]
[...] While constituting a stratagem is the fact that the Prosecutor of the Republic gives an OPJ the order to substitute himself for the supposed victim of blackmail in negotiations with the authors of it (Crim July 2018, n°17-80.313), not constituting a stratagem is the intervention of the gendarmes which had the sole effect of allowing the establishment of a crime of trafficking in influence of which they did not determine the commission (Crim 16 January 2008, n°07-87-633). Thus, the finality of the interventions is to be taken into consideration. In terms of the prohibition of fraudulent procedures, the Court of Cassation has ruled that the Customs Administration is not admissible to prove crimes with documents obtained fraudulently (Crim October 1991, n°90-83.692). In the same idea, police provocations and cell soundings are prohibited. This principle of loyalty, severe but protective, applying to judicial authorities, does not apply to private parties. B. [...]
[...] The quality of the accusatory party: the loyalty of the evidence at variable geometry The principle of loyalty is appreciated differently depending on the quality of the party producing the evidence. While the principle of loyalty is applicable to judicial authorities it is not applicable to private parties A. The principle of loyalty applicable to judicial authorities Judicial authorities, that is to say the State, administrations, are subject to the principle of loyalty. Thus, they must only produce evidence obtained in a legal, honest manner. On the contrary, there are two prohibitions for judicial authorities: the prohibition of stratagems and the prohibition of fraudulent procedures. [...]
[...] The judge is therefore omnipresent and omnipotent in this equation. [...]
[...] In reality, the evidence can be literal or verbal. It can be scientific, historical or even mathematical, for example. Whatever the case, the evidence is governed by Article 427 of the Code of Criminal Procedure, which states:Except in cases where the law provides otherwise, offenses can be established by any means of proof and the judge decides according to his intimate conviction. The judge can only base his decision on evidence presented to him during the debates and contradictorily discussed before him. ». [...]
