The burden of proof

By taking us from the concourse to the “common work” that is the verdict, Christiane Besnier brings her ethnologist’s perspective to this human enterprise: the assize court. She provides an analysis of its functioning, its rituals and its foundations, and deciphers the process of developing the judges’ intimate conviction, at the end of a search for truth collectively constructed by the actors in the trial.

From the assize court as a laboratory

Why an ethnological study of the assize court? For C. Besnier, this jurisdiction where the most serious breaches of the social pact are judged constitutes, during the trial, a social group presenting a “tribal effect” (decor, gestures, physical space) and rituals (induction rite of the entrance on stage of the different actors, sacramental formulas, rite of passage of the verdict). For 15 years, it has “pitched its tent”, according to Malinowski’s expression, in this endogenous but specific space and social group.

With a great sense of pedagogy and a clear mastery of legal concepts, she presents the actors and the spatial framework of the trial, its historical and symbolic significance, contributing to the search for truth through the spatio-temporal unity that it guarantees. She develops the idea that the hearing protocol deploys a meticulous organization to “restore order to the chaos of facts” and offer optimal conditions for the search for truth. The strength of this ritual lies, according to C. Besnier, in its capacity to produce the unexpected. It is a question of “leaving no room for improvisation, to welcome the unpredictable.”

It is in these optimized conditions that the “experimentation” can begin, namely the search for or rather the construction of the truth, which constitutes the heart of her study. The author describes it as a laboratory experiment: the president of the assize court, in the continuity of the investigating judge, observes the facts, questions and progresses from deduction to deduction, until examining all possible hypotheses, to confront each of them with the material evidence and the statements of the accused, the victim and the witnesses. The hypotheses erected from the initial findings are submitted to the debates to verify their validity; only the elements that resist this exercise will be able to reach the rank of proof and found the decision of the court.

The subjectivity of the experimenter, in the issuance of this or that preferred hypothesis, is tempered by the gathering at the same time and place of the different parties, who actively participate in the exercise by bringing their own subjectivity linked to the divergent interests that they defend. Their conclusions will finally be delivered in their requisitions and pleadings, before the court rules, at the end of the deliberations.

Produce “stable statements”

C. Besnier rightly questions the notion of truth. She questions in passing the role of the judge, the place of confession and the consequences of the emergence of the figure of the victim. She compares the inquisitorial model, implemented in most European countries, with the Anglo-American accusatory model, particularly the United States, in which the criminal trial is characterized by a face-to-face between the prosecution and the defense, in which each party seeks and exploits exclusively the elements that serve its thesis, mistreating and seeking to weaken the scope of opposing truths, before a president confined to the role of passive arbitrator and an accused whose word is not required. For C. Besnier, this system turns its back on the search for truth and the understanding of the act and, thus, on the interests of the victim and society themselves.

In the inquisitorial system at work in France, the truth is formed by successive layers of elements considered plausible (the clues), then probable (the charges) and finally certain (the evidence), according to the procedural moment of their examination and validation. in fineat the end of the adversarial debate which will have allowed its degree of plausibility to be tested. It is the recurrence of a statement which guarantees the stability of the fact. The statement thus “stabilized” is then reintroduced into the debates to be confronted with the other statements; it is ultimately the accumulation of “stable statements” which will produce the truth. C. Besnier shows that a hypothetical statement is raised as proof in a cooperative manner between the parties from a rational discussion.

This system necessarily encounters limits. The acquisition of stable statements remains provisional and hypothetical, particularly in the case of sexual crimes committed in an intra-family environment, due to the lack of material evidence to objectify the complainant’s statements. Furthermore, the discussion takes place according to the data acquired at the precise moment of the discussion; other evidence may subsequently emerge, which will invalidate the statement that seemed acquired.

The truth is ultimately only what is “rationally acceptable”, a plausibility whose degree is more or less high in relation to the data collected. C. Besnier states this by referring to Habermas:

We must be content with rational acceptability under as ideal conditions as possible as sufficient proof of the truth.

What matters, she concludes, is that the conviction of a truth is commonly shared on the basis of evidence that is sufficiently disputed to be stable.

In this gradual construction of truth, C. Besnier sees a resonance with pragmatic philosophy, which conceives of truth as a social construction: it is neither a given nor a prerequisite for knowledge, but a result. Using Gauss’s law, a statistical method, she attempts to model the formation of intimate conviction as the search for the result in which the error is sufficiently small, to the point of proposing an astonishing graphic translation.

The expected outcome of this rationalization process is, for the author, the overall restoration of the social bond, the “positive reconstruction for all”, what she calls the “common work”. This is the objective pursued by the actors of the hearing, magistrates and lawyers, each in his role in defending the interests for which he is responsible, and which ultimately constitutes the very object of the criminal trial and the meaning of the sentence.

Truth as experiment

C. Besnier describes the assize court as a profoundly human work. Using a rich and relevant bibliography that she mixes with her own analyses, she demonstrates that all the rituals performed have as their ultimate object the search for the truth, on the materiality of the crime, but also its springs, in order to provide a coherent response from the point of view of the convicted person, the victim and finally society.

“To perform a rite is to do something with power,” writes Paul Ricœur. The judicial ritual gives meaning to the trial, in that it allows everyone to understand, to express themselves and, finally, concludes J. Danet, to place their trust in the judges because they are identified as impartial third parties. C. Besnier is right to say that the ritual contributes to the search for truth: the orality of the debates, the spatial and temporal organization of the trial, the long time in which the protagonists of the crime and the judicial actors are immersed together following a meticulous protocol, favor the production of answers.

But what is truth? C. Besnier provides an interesting demonstration of the relativity of the notion, by developing the thesis of its elaboration, and is right in relating the search for truth to an “experimentation”. Legal reasoning borrows from the scientific method, from the Aristotelian syllogism by which the confrontation of two statements allows a third to emerge, which will in turn be confronted with another, etc.

These cascading deductions gradually lead to a rationally acceptable result, which leads to relativizing the objective nature of the judicial truth. J. Danet calls this “shared truth, approximate truth”. If the guilt of the accused is not in dispute, he writes, “the parties agree from the beginning of the hearing on a story that they will make the judicial truth”. In all cases, the hearing will only allow convictions to be raised and not absolute certainties.

The time of the trial, between past and future

The fundamental principle of deliberation being its secrecy, C. Besnier was unable to attend. There is no doubt that she would have extended her analysis on the formation of intimate conviction, which is not limited to the space of the hearing and is ultimately intimate only at the time of the vote. The convictions acquired or in gestation are confronted, discussed, sometimes amended according to the degree of interventionism of the president and the assessors, and according to the forces between the jurors themselves.

Each jury is driven by its own dynamics, depending on the personalities that compose it and the position of the president towards it. It is under these conditions that the “rational discussion” is continued, between the judges and jurors alone this time, until the vote that definitively closes the experiment.

The process of access to the truth described by C. Besnier is not exclusive to criminal justice. I. Jablonka sees a “community of method” between the investigating judge, the historian, the sociologist, who implement “models to get as close as possible to the truth of the facts”. These are human sciences, with their margin of doubt, uncertainty and interpretation. This is also the case with the criminal trial.

Opening and closing his book on figures a priori antagonistic relations between the accused and the victim, by describing the initial face-to-face between people linked by the past criminal act, then the virtue that the hearing will have had in separating the perpetrator from his act and the victim from his suffering, C. Besnier places the criminal trial in an intermediate time between a confining past and a future full of perspectives.