JUDGE OF INSTRUCTION AND DEFENSE COUNSEL

• NCJ Number: 66584
• Journal: Revue de science criminelle et de droit penal compare Issue: 4 Dated: (1976) Pages: 1043-1048
• Author(s): J GOULESQUE; J MICHAUD
• Date Published: 1976
• Length: 6 pages
• Publication Format: Article
• Language: French
• Country: France

Annotation

THE ROLE OF THE FRENCH DEFENSE COUNSEL AS A POSSIBLE ALLY OR ADVERSARY OF THE EXAMINING MAGISTRATE IS ANALYZED.

Abstract

THE POSSIBILITY FOR COOPERATION BETWEEN EXAMINING MAGISTRATE AND DEFENSE ATTORNEY OCCURS EVEN BEFORE THE ACCUSED HAS OFFICIALLY DESIGNATED HIS COUNSEL. IF THE MAGISTRATE CONSIDERS THE FUTURE COUNSEL AS NEUTRAL AND OBJECTIVE, HE MAY PERMIT HIM TO BE PRESENT AT THE ACCUSED'S FIRST APPEARANCE. IF, ON THE OTHER HAND, THE MAGISTRATE TAKES AN ADVERSARY ATTITUDE TOWARDS THE COUNSEL, HE WILL ATTEMPT TO OBTAIN WHATEVER SPONTANEOUS INFORMATION HE CAN BEFORE THE ACCUSED CONSULTS WITH THE COUNSEL. AFTER THE FIRST HEARING, THE EXAMINING MAGISTRATE CAN NO LONGER LIMIT THE ACCUSED'S ACCESS TO COUNSEL IN ANY WAY. YET EVEN THEN THE MAGISTRATE CAN GREATLY FACILITATE THE COUNSEL'S EFFORTS. FOR INSTANCE, MANY ATTORNEYS CONSIDER THE VISITATION OF THE ACCUSED IN PRISON A GREAT INCONVENIENCE, IF THIS IS THE CASE, THE MAGISTRATE MAY PERMIT THE ACCUSED TO BE LED TO COURT A FEW MINUTES BEFORE THE BEGINNING OF THE EXAMINATION SO THAT HE CAN CONSULT WITH HIS LAWYER. DURING THE EXAMINATION ITSELF THE ATTORNEY NEEDS THE AUTHORIZATION OF THE MAGISTRATE BEFORE SPEAKING. WITH REGARD TO PRETRIAL DETENTION, THE CONSULTATION BETWEEN COUNSEL AND MAGISTRATE IS OF PARTICULAR IMPORTANCE. THE COUNSEL CAN MAKE THE ACCUSED UNDERSTAND THAT IN SOME CASES PRETRIAL DETENTION IS MORE ADVANTAGEOUS THAN A RETURN TO LIBERTY AND SUBSEQUENT IMPRISONMENT. IN EACH OF THESE INSTANCES OF COOPERATION, THE ULTIMATE DECISION RESTS CLEARLY WITH THE MAGISTRATE. SIMILAR RULES OF COOPERATION APPLY BETWEEN THE MAGISTRATE AND THE ATTORNEY OF THE INJURED PARTY. IN VIEW OF SUCH NUMEROUS OCCASIONS FOR COOPERATION, TAKING OF STEREOTYPED POSITIONS AS 'FRIEND' OR 'ENEMY' SHOULD BE ABANDONED AND COUNSEL AND MAGISTRATE SHOULD COLLABORATE AS CLOSELY AS POSSIBLE. THE ARTICLE CONTAINS NO BIBLIOGRAPHICAL INFORMATION. --IN FRENCH. (SAJ)