Constructing the Pre-Trial Role of the Defence in French Criminal Procedure: An Adversarial Outsider in an Inquisitorial Process?

Abstract

This article outlines the construction of the role of the defence lawyer in French pre-trial criminal procedure and the factors which have both influenced and constrained its recent evolution. Beginning with an examination of the changing ways in which the pre-trial defence role is characterised by the text of the law and the official discourse surrounding it, the article then provides an empirically based account of the ways in which the defence avocat is perceived and accommodated by the key legal actors, namely the police and the judicial officers charged with the supervision of criminal investigations. A careful unpicking of the nature of their resistance to any effective defence role reveals fundamental weaknesses in the functioning of the current inquisitorial structure and, paradoxically, suggests that there is more rather than less room for the defence to play a role within French pre-trial criminal procedure.