She is very often (too much?) in the spotlight of regional and national media. She is the thread of a prolific crime literature. As a judicial mirror of the most serious human actions, all citizens know her. At the dawn of new parliamentary debates on criminal procedure [1], and far from party quarrels, let us take the time to look back on the special place of the assize court within our judicial architecture.
Two passionate professionals share their views on contemporary criminal justice, their fears, and hopes, through recent works. David Sénat, a magistrate, has just published a testimonial book on the role of the public prosecutor in the assizes by discussing the criminal cases that have marked him (Public Prosecutor, Bringing Charges, published by Editions Mareuil). Benjamin Fiorini, a lecturer in private law and criminal sciences, advocates resolutely for the defense of the popular jury (Save the Popular Jury! For a Humane, Democratic, and Citizen Justice, published by LGDJ).
Interview with David Sénat
How do you see the contemporary assize court?
I describe it as a model of an ideal criminal jurisdiction in the literal sense because it combines a variety of technical and citizen skills to judge the most serious facts. The crime itself does not require any particular technical judgment, as each citizen can assess the existence of evidence or lack thereof. The assize court has the ability to judge the obvious in the manifest sense.
The assize court holds a real political order in the highest sense of the term. Crimes are an attack on the functioning of society. The assize court thus informs society about what it is becoming and can therefore serve as a reflection to evolve our society at the political level. In this way, the assize court also constitutes an ideal of democracy in the functional sense, with society drawing a certain number of lessons from this jurisdictional experience. I strongly believe in this notion of inductive information from the assize court, file after file, jury after jury. That’s why I think it is dangerous to withdraw the crime of rape from the knowledge of jurors, even if we can understand the management objectives. Another example concerning drug trafficking: it is important to know what type of crime can result from trafficking, beyond the consumer’s point of view or its destructive effects on certain neighborhoods. I believe in this informative effect.
What difficulties is the assize court facing today?
The popular jury was created at a time when the criminal population was relatively stable and the judicial system allowed for the judgment of crimes without too much difficulty, even when the appeal was introduced. We have since changed scales and our knowledge of criminal reality has evolved. Many crimes that were once hidden are coming to light, or new crimes are emerging: the victims’ testimony of sexual crimes is just beginning to be heard, settling scores related to trafficking is escalating, not to mention the large criminal organizations…
The crimes brought to the attention of the judicial authority are therefore increasing in a system that is cumbersome to manage in terms of time and human resources available. Consequently, we are going to adapt a relatively virtuous judicial model for managerial reasons. The latest outcome of this managerial reality would be the criminal guilty plea, which risks making the crime invisible and taking it out of the knowledge that the public had through the popular jury.
As the voice of the prosecution before the assize court, how do you respond to this recurring societal accusation that “justice is lax”?
Criticism of justice is particularly vehement at the level of sentencing and its execution. Public officials have not integrated the mechanics of sentence individualization and the absolute necessity to evolve a convicted person. It is a complex exercise that always involves an alchemy. However, one must maintain this dynamic view of the sentence, which evolves and is meant to evolve because the law allows it rightfully. It is always possible to shorten a sentence. Not because we want to please anyone, but because the sentence evolves. And if it evolves, it is a good sign. Therefore, one should not be rigid on the quantum of a sentence in its pronouncement.
In the assize court, pedagogy is necessary to dispel biases, combat distorted sources of information, and fight against a “radicalized” opinion of repression. This changes the role of the public prosecutor, which was tended to be assimilated to the representative of repression, which it is not. It is the representative of society and the guarantor of proportionality.
How do you approach your role with the jurors?
I explain to them that I am a magistrate and like them, I apply the law. I explain the individualization of the sentence and the personal elements of a file. I emphasize that I do not work in excess. I do not ask for 10 years to get 8. It is a work of pedagogy and sincerity. Even if the media and cinematic symbols are sometimes heavy to bear for the public prosecutor (as in the movie Anatomy of a Fall), I ultimately tell the jurors that I try to position myself as if I were in their place. We are convincing to the jury if we show humanity in the application of the law. I remain in the identity of the magistrate that is contested externally.
Building on your last statement, what is your view on the public prosecutor’s status?
The unity of the body is essential. Absolutely essential. The movement must be to bring the public prosecutor’s office closer to the bench, and certainly not the other way around, unless we want to lose our identity as magistrates and abandon our current judicial system. The public prosecutor must remain a magistrate and benefit from the same guarantees as the bench magistrate[2]. We must continue to talk to each other and understand each other. Some problems currently experienced in the jurisdictions are more related to form than substance and are part of a context of generalized overwork.
Interview with Benjamin Fiorini
How do you see contemporary criminal justice?
Criminal justice is clogged by a wall of cases with unacceptable hearing delays. How do we deal with this wall? In my opinion, there are two options. Either we collectively decide that we want to maintain the principles of quality criminal justice by providing the necessary means for it to function. Or we establish procedural diversion channels as if we were dealing with a plumbing problem, through mechanisms that do not uphold the fundamental principles of criminal justice.
I define the great principles of criminal justice as the intervention of the jury, the publicity, and the orality of the debates. Based on this view, in 2019, I launched a fight for the defense of the popular jury during the experimentation of departmental criminal courts (CCD). I saw in the CCD a kind of climax of managerial justice. The motivation behind the bill summarized the objective of judging more quickly, but the idea of quality justice was never mentioned.
I am very sensitive to the jury issue, as when I started my law studies, I attended many assize and criminal court hearings. I compared the hearings. And I realized that the presence of the jury brought out a different temporality of the hearing. Personally, I am also very attached to the popular jury because, coming from a modest background, I see that the citizen jurors who make up the assizes come from very diverse backgrounds.
In 2019, I questioned the experiment of the CCD from the perspective of managerial justice and the challenge to the popular jury established under the Revolution. When it came to generalizing the CCD, even before the end of the experiment, I took up this cause at the political and media levels. However, when reading the 2022 report on the experimentation, it is clear that the objectives were not fully achieved. I tried to alert the parliamentarians, then decided to act at the level of the Constitutional Council by arguing for the recognition of the jury as a fundamental principle of the laws of the Republic. The Council responded negatively with an argument that I still find unsatisfactory.
To me, there is a historical continuity of the popular jury from 1791 to the present day, even if its composition has changed (Note: Fiorini revisits this historical continuity in Chapter 1 of his book A Brief History of the Popular Jury). The existence of the jury reflects the democratic vitality of our country: it says something about our democracy beyond a managerial logic.
What arguments do you put forward to defend the popular jury?
In the second part of my book, I concretely explain the fundamental contribution of the popular jury to criminal justice and put forth four arguments.
A democratic argument. The Sauvé report, established after the General States of Justice, mentioned a gap between justice and citizens. This gap must be bridged, and ties with citizens must be established for justice to be better respected. From this perspective, restricting the popular jury is contradictory.
A citizen argument. Participating in a jury is a citizen act. According to several sociological studies, former jurors see their participation in the assizes as a citizen awakening. Before their jury duty, their citizen action was limited to voting. But by becoming jurors, they realize that citizenship is not just about casting a vote but can also involve the act of judging and being at the heart of society. It is also an opportunity to revise their initial opinion on justice. Jurors arrive on the first day of the hearing with some preconceptions (the biased judge, lax justice) and leave with these preconceptions overturned because they realize the difficulty of the act of judging. This experience leads them to doubt the media narrative of the cases and sensational angles. The popular jury is not a populist jury. I believe, on the contrary, that the popular jury is a way to combat a populist view of justice. For example, in rape cases, the state of public debate is not brilliant. The notions of control and stupefaction are not properly understood. But former jurors explain that they understood control through their judicial experience.
A feminist argument. The MeToo movement has shed light on the seriousness of incidents and the mass of sexual offenses. We want a collective awareness of this phenomenon to better fight against these offenses. However, it is at this moment that we choose to remove rape from the popular jury’s knowledge. This gives the impression of a justice with two speeds – “a Champions League justice and a Europa League justice”. We preserve the great principles for some cases but not for others. This symbolically gives the impression of a criminal justice system with two speeds.
The fourth and final argument is the quality of justice. Having attended CCD and assize hearings and read a thesis on this subject, I note a strong loss of orality. Hearings are shorter due to the lack of pedagogy for jurors. This diminished orality results in no longer speaking about the great principles of justice or the philosophy of judgment.
What is your outlook for the future?
I continue, at my modest level, the fight to preserve the popular jury. My citizen view tells me that we are at a crossroads. Either we finally give justice the means to function well, in reasonable delays, while respecting the great principles of criminal justice. For me, this must be a national priority, and I speak to you as a citizen. Or we continue to develop procedural diversion channels as I mentioned earlier. Tomorrow, we will introduce the criminal guilty plea, and the day after tomorrow? Provocatively, I could add that the day after that, we will judge with an AI.
Conclusion
Regardless of the opinion and perspective one may have on the assize court and the popular jury, whether it’s a legal opinion from a seasoned professional or a scrutinizing view from an anonymous citizen, it is certain that this subject does not leave anyone indifferent. And in a democracy sometimes criticized for its hesitancy, this matters a lot.
