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April 01, 2012

Advance Sheet: Gaining Perspective from Abroad

The French and British legal systems feature different standards of guilt and innocence than the American systems, and different standards for how the accused may be treated.

Robert E. Shapiro

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It was a scene worthy of the most corrupt Wall Street trader. On a May afternoon in 2011, police officers surprised an alleged wrongdoer in the midst of his working day, clasped him in handcuffs and, before a crowd of gawking bystanders, marched him off to jail in a show of law-enforcement zeal. With the media well notified in advance, the TV cameras rolled as the arrestee arrived at the processing center and was paraded for the world to see in the famed “perp” walk, an indignity that in some jurisdictions has become a standard feature of American criminal law. Its supporters tout its usefulness as a visible reminder to lawbreakers that they will pay a high price, including public humiliation, for their mistakes. Critics note that the practice seems to be favored particularly by those prosecutors dependent on the ballot box for their survival.

Whatever the motive, its impact is undoubtedly dramatic. Who could forget, after all, the scene early one snowy December morning in Illinois when a sitting governor was confronted by police officers on the stoop of his home, handcuffed unceremoniously and walked off to jail to face charges of having attempted to sell a seat in the United States Senate? No one can know for sure what role, if any, such memories had on the members of the Illinois legislature who later impeached and convicted Rod Blagojevich, removing him as governor, or on the federal jury that convicted him on multiple counts of corruption. Are we prepared to say it was a negligible one?


The case in May 2011 involved no mere bond trader or even any high-ranking elected official. Instead, the "perp" in question was a distinguished foreign diplomat who, sitting on an airplane at the time, was awaiting his departure for Germany to join the most delicate of negotiations about saving the European financial markets. This was Dominique Strauss-Kahn, head of the International Monetary Fund and the presumptive nominee of France’s Socialist Party to run for president in 2012 against the deeply unpopular Nicolas Sarkozy.

Many Americans greeted the news nonchalantly, Strauss-Kahn being less than well known here. But seldom has a perp walk been followed by such dramatic events. In seconds, it destroyed any role or effectiveness DSK, as he is known, might have had in the effort to save world finances, while all his aspirations to become one of the leaders of the free world were left in tatters. DSK was booted from his job at the IMF, leaving a huge void there. The Socialist Party immediately began casting about for a replacement presidential candidate. It mattered little that all criminal charges, even in France, were later dropped. The indelible memory of DSK’s march of infamy remained.

It is far from clear to what extent the perp walk could be blamed for these later developments, and there was more than a little debate whether DSK, an alleged womanizer, did or did not “have it coming,” as the song goes. But for the French, the conduct of the authorities could never have fit the crime, even assuming there was one. In France, an arrestee may not be shown in handcuffs at all. A perp walk is simply illegal. The reason is a good one—the presumption of innocence, which stands as a bulwark against any conduct by prosecutors that would lead the public to view a suspect as guilty until so proved.

Howls of protest sounded across the Atlantic. How could the American criminal justice system, the French wanted to know, be so cavalier about an accused’s rights? America too seems to prize the presumption of innocence. How could it prove so insensitive to such a vital principle of criminal jurisprudence?

Criminal Justice in France and  America

However sensible the question, the French were immediately put in their place. More than one American commentator snappishly responded that, to put
it simply, the French should talk. Comparisons between the French and American legal systems are hardly flattering to the former. There are very few of the safeguards in French criminal justice that exist in the American model to protect the innocent. Perp walk aside, the French system as a whole is far less fastidious about the rights of the accused. The high dudgeon of the French was thus met blow for blow by no less censorious scholars in the United States, quick to defend, on substantive and procedural grounds, the superiority of the American way.

Touché. This international contretemps, having thus generated more heat than light, eventually subsided with neither side having been persuaded or even edified by the charges of the other. There seemed no middle ground. The perp walk has its advantages, after all, and is only one aspect of American procedure anyway, which generally is fairly protective of defendants. And while France's civil-law solicitude for the presumption of innocence is admirable, its system as a whole may be no match for American criminal law in its procedural protections. Maybe the failures of civil law jurisprudence explain its greater concern about the presumption of innocence, while the protections of American criminal procedure make it more tolerant of a little prosecutorial flair. But is there really anything more to say?

Well, yes there is. But before addressing these questions further, consider a couple of other cases of cross-Atlantic differences from 2011. The first attracted little notice in the United States, perhaps because it was a proceeding seemingly so foreign to our jurisprudence. During the early summer, Ryan Griggs, a well-known British footballer for the storied Manchester United franchise (for those Americans who think football is played with an oblong ball, think again) got a court injunction preventing anyone at all, whether news media or public person, from making known or even inquiring deeply into the facts of a sex scandal Griggs had become embroiled with in England. Even after word of the scandal was revealed in sordid detail, on the floor of Parliament no less, by a British MP with immunity from prosecution, the injunction was upheld. Perhaps anticipating the reaction of the British press, not to mention any horrified American who might be looking on, the court said that “this is not about secrecy; this is about intrusion.”

Really? What ever happened to freedom of speech and the press? Or the bar on any prior restraint? This is, after all, Britain we are talking about, the birthplace of the common laws. But under the British system, the analysis of permitted speech emphasizes much more the content than the process, making it in some respects the exact reverse of the American approach. The British tolerate, indeed tout, numerous forms of censorship that would be anathema to Americans. Injunctions such as those in the Griggs case, not to mention substantial procedural advantages to those accusing others of libel and even an Official Secrets Act, are all accepted parts of British law.

A clearer and more uplifting press as a result? No way. A first-time American visitor to Britain is often flummoxed by the sight of the various forms of reporting outrage that blare forth from virtually every newspaper kiosk. And, England, remember, is the home of the great press hacking scandal of 2011.

One final example. Just a few weeks before the DSK incident, the American people were electrified by the news that the long-hunted and much-hated Osama Bin Laden had been found in a not-very-secret hideaway in Pakistan and, in the course of his apprehension, killed. Political leaders and politicians one-upped each other in exulting in the news and making sententious comments about American pride and its vindication. President Obama himself went on national TV to elaborate on these sentiments, stating that "justice" had been done.

Not so fast, said many Europeans. However much relieved at Bin Laden’s demise, they tended to be a bit more demanding about the legal basis of the American foray into Pakistan, not to mention the death of Bin Laden himself.  Their quarrel was with the view that what was, apparently, an assassination on foreign soil might be designated as “justice.” Whether or not Bin Laden’s death was a good thing, continental Europeans grumbled over the question of whether it was a legal one. What gave the United States the right under international law to take such harsh action? How might it be justified in the rights that nations have in dealing with each other?

Most Americans who heard these reservations seemed a bit bewildered by the intrusion of such legal niceties into foreign affairs. To the extent Americans paid attention to this criticism at all, they tended to doubt the force of international law in this circumstance. Where, they asked, was the treaty or the convention that prevented the United States from retaliating against its enemies, particularly those who are at war with America? International law seemed to have little to do with it. In the perspective of many Americans, foreign relations, but for the treaties, are not governed by law at all. Each state has the right and may use its power to defend itself by whatever means necessary. Procedural protections are for domestic proceedings.

Different Systems, No Preferences

What do these three incidents have in common? Each provides an example how U.S. and foreign jurisdictions handle matters differently. Why they handle them differently seems a pretty good question. Certainly it is far more than just a different preference about an individual element of procedural and substantive law. In each instance, the disagreement arose because the underlying system was fundamentally different. And reflecting on those differences has a certain value in understanding our own approach.

Take the DSK case for example. The common presumption of innocence in the French and American systems actually masks a more fundamental difference between them. We rely upon an adversary system in which the truth is to be found through the clash of opposing arguments by contending sides. Civil law systems are more inquisitional, relying on an expert fact-finder to uncover the truth. In part because of the high heat generated by the American model, procedural safeguards exist to ensure that the possibility of innocence is not obscured. In many ways these are necessarily more powerful and prominent than the rules covering French criminal justice because they have to be given the rough-and-tumble character of American jurisprudence, they would make little sense in the French inquisitional model.

This is the truth behind the American retort that the French do not provide nearly the kind of protections for the accused that Americans do. But this does not make the French approach defective, just different. It also may explain why American justice tolerates the perp walk, which the French find so unacceptable. Americans tolerate it because they can. The system builds in so many protections for the accused, a little departure here or there may not be so critical. The French system, by contrast, may be less forgiving, making the perp walk seem far less tolerable.

The same might be said about the Griggs case. A feistier British press may require greater restraints in some areas. Americans tend to think of their press as pretty brass-knuckled, but it still pales by comparison with its cross-Atlantic counterparts. Interestingly, Anne Sinclair, the wife of DSK, said in her first interview about the event that the American press was far more restrained than what she encountered in Europe.

Nor does the Osama Bin Laden issue arise just from a different understanding of what international law provides. Americans and Europeans are literally not talking the same legal language. American law, imbued as it is with the natural rights and social contract theories of Hobbes and Locke, tends to view law as stopping at the water’s, or at least the nation’s, edge. The world is a jungle where the war of every man against every man predominates, unless and until some group or community, in the interests of peace, erects a legal system that promotes peace for itself and itself alone. There is therefore no international law, except to the extent these sovereign communities agree, by treaty or otherwise, to impose restrictions on themselves. So anything goes unless a treaty or convention says otherwise.

Modern-day Europeans, by contrast, schooled in the ideas of such thinkers as Rousseau and Kant, seem to approach such matters in a fundamentally different manner. They too look for positive enactments to govern their conduct. Indeed, their rights are found there. But these laws are not simply conventional strictures that protect fundamental rights found in nature. The legal principles themselves are found there. Those natural legal principles apply everywhere and always, domestically and internationally. When asking what there is in international law that permitted the offing of Osama Bin Laden, they are not asking about whether Americans are constrained by any treaty from doing what they dare please abroad, but how their conduct squares with these fundamental legal principles found in nature itself.

So is there anything to be learned from all this? If these disagreements emanate not just from differences of opinion about individual items, but from more fundamental disagreements about how criminal justice, or press freedom, or international law should be understood, the temptation is to just chalk it up to different strokes for different folks and never consider the matter any further. But these different approaches in reality should help us look more deeply at our own conduct. Just like travel abroad, where we witness the different mores of other cultures, can help us better understand our own ways of doing and evaluate how well or poorly our own civilization handles matters of vital importance, reflection on the differing customs of foreign legal systems should cause us to ponder and analyze whether what we do is good and fair and just or not.

No, we have no reason to adopt the French inquisitorial system of criminal justice, but the greater sensitivity to the public presumption of innocence that the French system necessitates should cause us to ponder whether, despite the greater procedural protections here, we should be more sensitive to the presumption too. Our press may be less raw than the British counterpart, but the latter’s substantive legal restrictions might make us consider what greater responsibilities might apply to a press left more on its own. And when acting internationally, we may adhere to our view that, beyond our borders, justice is simply the advantage of the stronger while still taking care to consider the natural law principles of our civilized neighbors across the Atlantic. Indeed, the more we pay attention to the different ways of respected others, the better perspective we are likely to have on ourselves.


Robert E. Shapiro

The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP, Chicago.