Three-party trial in France, and the role of the Republic&#39;s prosecutor In France, there are some circumstances apparently called &quot;partie civile&quot; where there's three different parties represented in court : the republic's prosecutor (procureur de la république), the plaintiff, and the accused. Each can apparently get nearly as much air time, and each can ask a different verdict to the court (i.e 5 years prison, 2 years prison, and acquittal for example). It seems, based on the information I have, that the plaintiff acting at all is due to the specific procedure of &quot;constitution de partie civile&quot;, and that it's a supplement over normal procedure. Does that mean that in the normal case, offences (délits) and crimes are prosecuted only by the republic's prosecutor, without the plaintiff being represented by an attorney at all ? Is that really the normal procedure ? Secondly, are there any circumstances where A sues B for an offense or crime (not a contract violation or anything related to civil suits), and no republic's prosecutor is attached to the case, i.e where the plaintiff and its attorney act alone facing the defendant ? If not, what's the rationale of always involving the state at the prosecution level ?
Obviously, most of what follows is specific to france. General considerations In common-law countries, civil liability follows from a specific legal theory. One has to state one’s legal theory (for instance: breach of contract), and then prove each of the various elements of that theory. In France, and I believe in other civil-law countries, civil liability follows a more general pattern. Civil liability is established by a three-prong test of (1) wrongful action, (2) damage, and (3) causation link between the wrongful action and the damage. Now, in most civil cases (&gt;90%), proving prong (1) will rely on certain civil statutes, in which case the distinction is mostly theoretical, because those statutes more or less mirror common-law causes of action. However, a criminal act would satisfy prong (1). Civil law does not see much difference between damages resulting from a &quot;civil&quot; cause (e.g. I bought an item from BigCorp that turned out to be defective and I had to buy a new one) or from a &quot;criminal&quot; cause (e.g. BigCorp intentionally sold me an item that violates the electrical code and it set fire to my house). BigCorp’s CEO might go to jail in the latter scenario and not in the former, but the legal arguments I will make at court are relatively similar. The victim of a criminal wrong may choose to either pursue a civil action, or trigger or &quot;jump in&quot; (constitution de partie civile) a criminal trial. While civil and criminal trials are separate in the US, the concept of a third party joining ongoing litigation is not entirely unknown (&quot;intervention&quot;). Statutes The procedural questions can be mostly answered by citing articles 2 to 5 of the Code de Procédure Pénale. I grouped together paragraphs of each article for ease of reading. I also used the equivalent US procedure terms for translation when I knew them. L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. (...) L'action civile peut être exercée en même temps que l'action publique et devant la même juridiction. Elle sera recevable pour tous chefs de dommages, aussi bien matériels que corporels ou moraux, qui découleront des faits objets de la poursuite. L'action civile en réparation du dommage causé par l'infraction prévue par l'article 2 peut être exercée devant une juridiction civile, séparément de l'action publique. Toutefois, il est sursis au jugement de cette action tant qu'il n'a pas été prononcé définitivement sur l'action publique lorsque celle-ci a été mise en mouvement. La mise en mouvement de l'action publique n'impose pas la suspension du jugement des autres actions exercées devant la juridiction civile, de quelque nature qu'elles soient, même si la décision à intervenir au pénal est susceptible d'exercer, directement ou indirectement, une influence sur la solution du procès civil. (...) La partie qui a exercé son action devant la juridiction civile compétente ne peut la porter devant la juridiction répressive. Il n'en est autrement que si celle-ci a été saisie par le ministère public avant qu'un jugement sur le fond ait été rendu par la juridiction civile. Anyone who personally suffered from the damage directly brought about by a felony, misdemeanor or petty offense, has standing for civil action. (...) One can move for a a civil action in front of the same court and at the same time as the public action [= state prosecution]. The movant has standing for all damages (...) that are the consequence of the prosecuted facts. Civil action as outlined in article 2 can be brought to a civil court separate from the public action. However, if public action has started, the civil action is postponed until there has been a final judgement on the public action. Public action does not mandate postponing other causes of action pending in front of the civil court, even if the criminal case decision might have a direct or indirect impact on the solution of the civil case. Whoever brought a case in the appropriate civil court cannot bring it to the criminal court, except if the state brought a criminal action before the civil court ruled on the merits. So, basically, a plaintiff has to choose between bringing the case to civil court or to criminal court. If the case is brought to civil court, there will be no public prosecutor. If the case is brought to criminal court, there will be one. How to choose? The choice of where to bring the action is mainly tactical. Some factors include: whether you have a choice at all. On one side, non-criminal facts cannot be pursued in criminal courts (breach of contract, divorce, etc.). On the other side, proving the &quot;wrongful act&quot; prong of certain cases all but requires a criminal verdict of guilty (defamation, medical malpractice, etc.) whether public prosecution is more likely to help or hinder. The prosecutor on an armed robbery case will generally be on the same side as the victims, but they might be neutral or outright hostile to the plaintiff in other cases. For instance, prosecutors often take the &quot;not my problem&quot; stance in defamation cases. statute of limitation: civil actions are (generally) time-barred sooner than public prosecution, and the clock on civil statutes is not reset by criminal prosecution. Some more &quot;cultural&quot; notes Each can apparently get nearly as much air time.. As hinted to in o.m.’s comment, that is much less important than it would be in the US. In the adversarial system of the US, the judge is an observer / arbiter in the trial: the parties run the show, pick &quot;their&quot; witnesses, ask all the questions, etc. In the inquisitorial system of France, each witness will first be questioned by the judge, not the parties, and the parties usually have very few additional questions if any (the cases that you read about in the press are high-stakes and abnormal in that regard). ...and each can ask a different verdict to the court (i.e 5 years prison, 2 years prison, and acquittal for example). The partie civile would usually not give any opinion on the criminal punishment. Their job is to get a monetary award for their client, as fast as possible. The criminal sentencing is irrelevant to that. There are some exceptions: if the prosecutor requests an illegal sentence (it happens - sentencing rules are complicated), you don’t want to risk the judge granting it, because then the probability of appeal goes up drastically (which delays the whole thing) spending time in jail is not a lucrative activity; asking for less jail time might help with the defendant’s ability to pay compensatory damages comments along the line of &quot;it would be unjust that this heinous criminal gets away with less than X years in jail&quot; are usually unwise (why waste the judge’s time / goodwill on that? let the prosecutor do it), but may be necessary for PR or client management reasons (typically if the case is making front page news). Note also that the judge is not held by any of the requests - they might go higher than the prosecution or lower than the defense. I know that in theory US judges might do that, but in practice it never happens. In France, it is rare but not exceptional (I would guesstimate maybe 5% of cases?).
Short answer, yes, jurors will typically render a decision of guilt vs. innocence. This is pretty common in nations where the legal system is derived from British Common Law (about 2 billion people world wide live in a Common Law nation). The U.S. is unique in that it uses juries for Civil Trials as well as Criminal Trials. The right to a trial by jury is guaranteed in the U.S. Constitution in which the 6th amendment guarantees the right to trial by impartial jury (contrary to popular opinion, it is not a jury of peers, as this alludes to the Peerage systems, which the U.S. never adopted). That line is from the Magna Carta which was influential in the drafting of the U.S. Constitution and Bill of Rights. A jury usually consists of a panel of 12 people pulled from the locality of the crime, unless a change of venue has been granted because the alleged crime is so well known an impartial jury cannot be seated from the population. The jury will hear all the evidence from both sides, as well as opening and closing arguments. They will be provided &quot;jury instructions&quot; by the judge and must find if the evidence presented (The Facts) meet the criteria for a conviction of a charged crime (The Law). In all Jury Trials, a Jury fills the role of &quot;Trier of Fact&quot; while the Judge fills the role of &quot;Trier of Law.&quot; While the judge has the education background to understand what the law says constitutes a crime and how to find that law as well as how to make sure the defense and plaintiff/prosecution make fair arguments, any random group of 12 people can understand facts and put together whose story they believe, the defense's or the prosecution's. In the case of an innocent person being convicted due to inept defense, this does happen and is horrible, but there are recourses in the form of appeals courts, which can overturn a trial and order that a new one be held (a mistrial, essentially, the original trial never happened and the person is legally innocent. Try again and do it proper this time.) Ineffective assistance of counsel is a valid grounds for appeal of a conviction and does happen. In the other scenario, an inept prosecution, this does happen as well and it's not the fault of the jury that the guilty person went free, but for the prosecution. The prosecutor is at a disadvantage in every criminal case to balance out the fact that their office has more resources to bring to bear then most defendants. Among these handicaps is that their &quot;story&quot; about what happened must not have any &quot;plot holes&quot; in it (beyond a reasonable doubt evidentiary standard of proof) and that the prosecution has to convince 12 people that their story is the only way this could happen (try convincing 12 random people to agree to anything more complicated than &quot;the sky is blue and grass is green&quot;) and they only have one shot to do it (Double Jeopardy essentially bars the prosecutor's office from initiating the appeals process... and blocks someone who is declared innocent from doing it because why the hell would you want to?!). Here, the problem is that the Prosecutor doesn't have to charge the accused right away and has a bit of generous time to investigate (depends on statute of limitations on particular crimes) ... but the right to a speedy trial means that once charges are filed, the clock starts on how long the prosecution has to bring the case. Delay to long and the judge will give a directed verdict that the person is innocent because the prosecution wasn't ready. The importance of this fact that is a staple belief of Common Law is in the &quot;Blackstone Ratio&quot; which states: Better that 10 guilty people go free than a single innocent person suffers So the jury finding the prosecution inept is certainly the prosecutor's problem, not the jury's problem. It's a feature not a bug. If an innocent person does suffer, then we have a bug and we must see that it is corrected. As a final note, the jury also has the power of Jury Nullification of the Law. In the U.S. it's not really certain if Jury Nullification invalidates the law completely but in effect, it allows the Jury to declare a person innocent because, while they believe the prosecution's story that the defendant did what they were accused of, they don't believe this person should be convicted because they believe the crime they're accused of should have never been a crime in the first place.
A party can ask a judge to recuse at the outset of a case for bias or other reasons (e.g. a family connection to a party). Generally, a judge rules on that motion personally and it is an interlocutory motion not subject to appeal except by extraordinary writ (or the equivalent) to the state supreme court. It is not generally proper to do so during a trial. Moreover, one jeopardy has attached in a criminal trial (which happens when the jury is sworn) if the trial ends prior to a jury verdict for reasons other than those attributable to the defendant, the defendant cannot be tried again on those charges and is functionally acquitted. There are probably some arguable exceptions to this rule in extraordinary circumstances that are not the fault of either party (e.g. if a meteor hits courthouse and kills the judge and some jurors mid-trial, or if it is revealed that the judge committed the crime for which the defendant is being tried). But the threshold for exceptions to the general rule is very high.
In a trial by judge (bench trial) that could certainly happen. Most substantial parts of the judicial process can be sealed, under numerous laws and theories. The U.S. FISA "Court" is notorious for operating virtually entirely in secret. Various laws allow for secret subpoenas or warrants, with the subjects on which they are served held criminally liable for violating the court's order for secrecy. In a trial by jury it would probably be impossible for an exonerating fact to be presented to the judge only, since the proper role of the jury is to decide all questions of fact in a case. Furthermore, a court can compel a witness to testify, with no requirement to mitigate the damages of such testimony. However, if the accused knew that an exculpatory fact could be provided by a witness, and that the witness might decline to give (honest) testimony to a jury, he would presumably waive his right to a jury trial, at which point the testimony could (in theory) be given only to the judge.
A prosecutor's discretion is almost unassailable. The main reason for this is to prevent prosecutors from having to defend in a legal forum every single decision made. In a civil matter, prosecutors have absolute immunity form being personally sued for their actions (again, to prevent a prosecutor from being sued from every single defendant). https://en.wikipedia.org/wiki/Prosecutorial_immunity Misconduct by prosecutors may be resolved by reversal or retrials of court proceedings. But this is not something that really has criminal penalties. https://en.wikipedia.org/wiki/Prosecutorial_misconduct#:~:text=In%20jurisprudence%2C%20prosecutorial%20misconduct%20is,is%20similar%20to%20selective%20prosecution. Occasionally, a prosecutor may be subject to discipline from the state's Bar. This is rare, and is not much of a deterrent. https://publicintegrity.org/politics/state-politics/harmful-error/misconduct-and-punishment/ Theoretically, a prosecutor who out and out breaks the law can be prosecuted. Examples seem to be rare, and are more about government malfeasance (expense reports, misuse of government equipment, etc.). Due to the above standards, proving criminal conduct around prosecutorial discretion will be extremely difficult, as will finding a fellow prosecutor willing to even go down that road. It is in no prosecutor's interest to set the precedent of prosecutors being jailed for their behavior. So, why has nothing happened? Because in general, prosecutors can get away with almost anything. And I will add, Because America seems to like it this way.
Once a case has been commenced, you can definitely lose, or you can probably lose. If you decline to proceed, you definitely lose. If you proceed, the jury (or judge as the case might be), might find some witnesses more believable than others and might find that the forensic evidence is not as convincing as it seems. Empirical evidence suggests that criminal trials reach the correct conclusion in about 90% of cases that aren't resolved on an uncontested basis. Generally speaking, the Crown is only going to press a case where the prosecutor subjectively believes that they are correct that the defendant is, at least, guilty of something. So, a Crown prosecutor can also justify "rolling the dice" in a case with a low probability of winning, because at a minimum, a factually guilty defendant (whether it can be proven beyond a reasonable doubt or not in a particular trial with a particular finder of fact) has to suffer through a trial which is a form of punishment (particularly if the defendant can't secure pre-trial release). Also, while the Crown prosecutor ultimately represents the state and not the victim, the victim of a crime is a quasi-client and sometimes a victim who often has personal knowledge of a defendant's factual guilt, really wants to have their "day in court" and a chance to present their case to the public for all to hear. Law enforcement officers working on the case may want it to go to trial for similar reasons. Strategically, bringing even weak cases to trial also makes a Crown prosecutors threat to go forward with a trial even in a seemingly weak case more credible and that can increase the prosecutor's negotiating power. Also, a trial always reveals information, and sometimes the information revealed in a trial that is lost can provide value in future law enforcement efforts. Finally, prosecutors are humans and people, in general, don't like to admit their own mistakes. So, they may go forward even when their case is weak because they don't want to admit that they were mistaken and would prefer to have somebody else say they were wrong than to admit error. The personality type that doesn't admit mistakes is pretty common in this area.
No. The U.S. Attorney brings charges on behalf of the United States, which is the filing party, at least in criminal cases. That's why every criminal case is styled "United States v. [Whomever]."
In a civil action: If you are serving written discovery on a party, under the federal rules of civil procedure, or in any state whose adopted the model rules, (rules 33-37 typically), you need only send your requests for interrogatories, the production of documents, or for admissions to the party (through their counsel unless they are pro se), accompanied by the discovery notice, detailing the time frame in which they are due. It is typical that this time frame will get extended, sometimes by double or triple the original 21 day period plus 3-5 days for mailing. When the party is represented (this is 99% of the time) the attorney will just call you or email you for an extension and it is pro forma to assent to this. The court will not be happy if they need to seek permission of the court for this because you refused, as it is that common, and you will just get a reputation as a non-cooperative pain (not to mention, the time will come when you need an extension, and what comes around goes around). If they seek an unreasonable amount of time (I'm talking so close to the discovery cut off that you'd not have time for depositions after receipt), then you can limit it, but a couple of months is common. This need not go through the court. If they are not represented, they may just be late rather than calling, in which case you have a duty to contact them before involving the court. This is just because they don't know it is the norm, and it is nearly impossible to pull together everything needed from a full set of discovery in 21 days. When there is a true discovery dispute, you must show the court that you made all due diligent efforts to resolve it on your own. I don't have my rules in front of me (I will edit and add this when I do) ... but this is in the rules, it is not just practically speaking. Also, many jurisdictions require that you contact the court's clerk and get permission before filing any discovery motions. Sending a subpoena is not ever how this is dealt with. If the opposing party fails to respond, or if they are continually late and despite numerous contacts they still do not produce, then you would schedule a discovery conference with the court at which time you will seek a motion to compel. The court will typically give them even more time at this point. You are correct in that when a third-party is served with discovery request, since they have no obligation to take part in the case but for the presence of a subpoena; hence, in this situation you would use a subpoena to request whatever it is you are requesting. They may get their own lawyer who will try to limit your right to get anything from them as a non-essential party, but if it is really relevant you can do it. You would also use the subpoena for depositions, to ensure that witnesses present themselves. Otherwise, subpoenas are reserved for acquiring witnesses to appear in court or for custodians of records to bring records to court for hearings or trial.