Laying Down the Law

JIM LEHRER: The French legal system, which is investigating the death of Diana, Princess of Wales, and to Phil Ponce.

PHIL PONCE: The investigation of the Paris car crash that killed the Princess of Wales and two others has centered on six photographers and a motorcycle driver. That investigation is being conducted in a system that has some similarities and some major differences with criminal law in the United States. Here to explain are Anthony Kahn, a partner of the New York-based international law firm of Kudere Brothers, his practice focuses on commercial and corporate law, and he has spent over three years practicing law in Paris, and Laurent Vonderweidt, a French citizen who is certified to practice law in both the United States and France. His California practice focuses on immigration, business, and French law.

Mr. Kahn, could you briefly explain what has happened to these men since they were arrested within the confines of the French criminal justice system? What have they gone through exactly?

ANTHONY KAHN, Attorney: Well, the first stage is a period which could be up to 48 hours, and I believe it was that long in their case, where they are held by the French police, pretty much incommunicado. They can at one point, I think, about after 20 hours, see a lawyer, but he really can't do very much, other than make sure that they are all right. And the police in France have the advantage of that period of time to investigate these suspected crime and collect evidence which they will present to an examining magistrate at the end of that time.

PHIL PONCE: Is it fair to say that during that time that they got statements from these seven men, is that likely?

ANTHONY KAHN: That is certainly usually the case, that the individuals who are so arrested are kept in circumstances which are certainly not comfortable. And they are encouraged to tell their version of the story. Obviously, they can't be forced to do that, but they do not have the kind of Miranda warnings or other protections which you would expect in the United States, which might lead such an arrestee to say nothing at all to the police.

PHIL PONCE: Mr. Vonderweidt, at this point, are the seven men, are they considered suspects, are they considered defendants?

LAURENT VONDERWEIDT, Attorney: That's a good question. I mean–and to follow up with what was just said and that happened I think yesterday–the police have gathered a number of information–they are going to reach some conclusion they are going to present to a magistrate, who in turn is going to decide if there is enough evidence that maybe further inquiry is necessary, and exactly what happened. And at that point, photographers in that case did not become suspects, but I will say target of the investigation. And that allows the magistrate–not–the prosecution–to continue the investigation.

PHIL PONCE: Mr. Kahn, as this investigation continues, I mean, what is the likely next step? What happens here?

ANTHONY KAHN: Well, the investigation may continue for quite a period of time. Obviously, the examining magistrate who will be collecting evidence in preparation for making a report on whether they should go to trial or not–will want to hear the evidence of the one survivor of the accident so that he will have to wait until that individual is ready to give testimony. He will collect other evidence from eyewitnesses. And on the basis of the evidence and his investigation, which is now a full investigation, he will make a recommendation to the prosecutor as to whether a trial should be sought against these individuals, and, if so, on what charges.

PHIL PONCE: And what charges are the most serious ones that are possible?

ANTHONY KAHN: Well, there is a charge very similar to the one that would exist in the United States of involuntary homicide similar to our manslaughter charge, which is certainly a potential charge. But unlike the United States, there are a couple of other charges which could be brought in France. One is a violation–alleged violation of the Good Samaritan Law–which is a legal obligation in France upon onlookers to an accident to help someone in danger. You have an obligation in France to stop, call for help, and if you can–without endangering yourself–assist someone in danger. The law says that you must do that. And, of course, it is possible that they will be charged with failing to respect that law.

PHIL PONCE: Mr. Kahn, to what extent do jurisdictions, criminal jurisdictions, typically states within the United States impose a Good Samaritan responsibility on citizens here?

ANTHONY KAHN: I think it's extremely rare, if it exists at all, in any of the states in the United States that the Good Samaritan obligations go as far as in France. We do have a good American law, which requires in varying degrees in different states, someone who begins to render assistance to continue to do so, and not to simply stop in the middle, for example, of giving CPR to someone. But I'm not aware of any state which goes as far as the French law goes in requiring someone who's a witness to actually assist an individual if it can be done without endangering himself.

PHIL PONCE: Mr. Vonderweidt, is that an obligation that French citizens are generally aware of, their responsibility to help out?

LAURENT VONDERWEIDT: That's a question that may be difficult to answer, but I do not believe that, indeed, people are aware of this, this provision of the law, so that's pretty much what I can say. Again, I'm not sure they are aware of that. Now I'm sure they are.

PHIL PONCE: As far as the authority, Mr. Vonderweidt, of the investigating judge to impose sanctions like ordering somebody not to continue to practice their profession or journalism, is that–is that a fairly common thing to do?

LAURENT VONDERWEIDT: The court gives the authority to the magistrate to do that. In fact, it gives the magistrate broad latitude of what it can decide to do. I think we have to remember in that case is that the procedure is pretty standard; that the actors and the victims involved, you know, are certainly out of the itinerary–and it seems to me that maybe that–a case–some people make the argument that some of the measures taken by the magistrate were not necessary at the time.

PHIL PONCE: Mr. Kahn, if there are charges filed and if there is a trial, differences between French trials and American trials, for example, does one have the right to remain silent in a French trial?

ANTHONY KAHN: Well, of course, one cannot be forced to speak. Legally, one can't be forced to say anything. The difference, however, is that there is not the same degree of warning that one has the right to remain silent. And in France, if one does remain silent, it can be held against you. The judges who make the determination in this case as to the culpability of the individuals will probably take into consideration the degree of cooperation that they've received, or the prosecutors have received, from the suspects. And someone who doesn't explain his actions or refuses to say anything is likely to have that held against him in France, which would not be the case here.

PHIL PONCE: And how about the presumption of innocence of guilt, how does that work, and what are the–is there a difference in the burden of proof, for example?

ANTHONY KAHN: There is the same basic presumption of innocence in France, as the one that exists in the United States, and the prosecutor, similarly, has a burden of proving the guilt of the individual defendants. However, the burden is not as great as it is in the United States, where, as we all know, one has to be proven guilty beyond a reasonable doubt. In France, in a crime of the type that we're talking about here, which may be charged against these individuals, the judges merely have to be convinced that the individuals committed the crime. There is no burden of proving it beyond a reasonable doubt. If the judges are convinced that they committed the crime by a preponderance of the evidence, then they will be found guilty.

PHIL PONCE: Preponderance of the evidence being more of a standard that we associate in the United States with civil trials for example.

ANTHONY KAHN: That's right. If they are convinced it's more likely than not that the crime was committed by these individuals as charged, there will be a guilty verdict.

PHIL PONCE: And how would French law, Mr. Kahn, take into account the possibility that the driver of the car might have been intoxicated. How does that factor in into the respective responsibilities of the various parties?

ANTHONY KAHN: Well, it is, of course, a factor because the difficult question of what caused the accident is a key question. But I think it will be dealt with very differently in France than in the United States. In the United States, where the lawyers play a much more active role in the proceedings in a trial of this type, in a criminal trial, one would expect the lawyers for the defendants to make a major point of the alleged drunkenness of the driver and say that it makes it impossible to prove beyond a reasonable doubt that the photographers caused the accident. In France, on the other hand, the notion of shared responsibility is much more well developed. And the fact that the driver may have been culpable does not relieve necessarily the photographers of what they have been accused by some of doing.

PHIL PONCE: Mr. Vonderweidt, if you were explaining to an American how the atmosphere or the mood in a French criminal trial is different from that which might exist in an American criminal trial, what are the differences?

LAURENT VONDERWEIDT: Yes. I think the most–the first difference is to the fact that in France you don't have juries, I mean, except for a very limited number of cases. And I–the photographers are going to be tried before a panel of three judges. That's the main difference. The other difference, also to mention, is that the victims of the–the family of the victims can join the civil lawsuit with a criminal procedure, so you would have–and you don't have the–it's a possibility. They don't have to do that, but if they do that, and I've heard that the–some members of the victims have done that–you would have the judge to decide first on the criminal side and then at the same time some trial to decide on the civil suit.

PHIL PONCE: And with that, Mr. Vonderweidt, Anthony Kahn, I thank you both.

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