Henri Capitant Law Review (English)

The Law of Evidence

Editorial - Philippe Delebecque, Professor at the University Panthéon-Sorbonne (Paris-I), Mustapha Mekki, Professor at the University Paris-Nord (Paris-XIII)

1. Between culture and the law of evidence - At the confluence of substantive law and procedural law, evidence is one of the most fundamental techniques of the law. The old adage "idem est non probari et non esse; non deficit jus, sed probatio" (what does not appear and what is not is the same; it is not the defect of the law, but the want of proof) is well known and sums up its significance on its own. In addition, the probative technique is a perfect developer, in the photographic sense of the term, of the cultural character of the law. Culture can refer to a "(...) whole ethnographic group which, from an investigative point of view presents significant differences when compared to others" (1), significant differences relating to skills, customs, science, language, politics and techniques, etc. French culture, in particular, is characterised by its concept of equality, tradition and state control (2). Probative traditions exist to this end.


2. Non-legal considerations for the law of evidence - This strong cultural dimension of the law of evidence justifies the significance of non-legal considerations. The law of evidence can only be embraced in all its complexity if it is also devoted to an historic, anthropological, sociological, economic or philosophical approach. In fact, the role of evidence is primarily one of a legal nature rather than of a social nature, as is confirmed by Henri Lévy-Bruhl's valued reflections. In addition, evidence is a risk for contracting parties and defendants. This risk can be managed by contract or allocated to one of the parties by law or by the judge. As a risk that needs to be contained, this becomes a vital subject for study for people committed to the economic analysis of law in general and trials in particular. In addition, the cultural approach enables the relevance of the traditional contrast between civil law and common law to be better appreciated. Furthermore, these differences of tradition cannot be highlighted without a historical study of the probative issue. For a while, at least, this contrast served as the bedrock for the division between the various probative legal systems. Nowadays, the convergence of cultures is leading to, if not a rapprochement, at least a transformation of the common law and civil law systems. This contrast does not constitute the only scientific classification criterion. This edition of the Henri Capitant Law Review is thus the opportunity to show, through its various articles, that French law in the Romano-Germanic tradition, following the example of numerous European countries, has no reason to envy the common law system, which is traditionally presented as being more "efficient". French law has been able to implement a law of evidence that best reconciles efficiency and fairness. This overall concept of the law of evidence leads one to better understand the rapprochement between the various procedures, whether it is a question of civil, criminal or administrative trials.


3. Convergence of the issues raised in the various legal systems - The issues that are raised by the law of evidence are quite similar whatever legal system is examined. With regard to the aims pursued by the various probative systems, they are converging over time. On the other hand, it is true that the answers given to these questions and the methods for achieving these aims vary depending on the systems. Whether it is a question of civil law or common law systems, evidence leads to questions concerning the respective positions of the parties, third-parties and the judge, arbitrator or authority entrusted with settling a disagreement. The issue is also raised of the impact of new technologies, the issue of what place should be assigned to fundamental rights, whether of a substantive or procedural nature, and finding out whether the probative issue should prioritise efficiency or fairness, truth or equality, etc. These issues affect all legal systems that try to answer them using variable means.


4. The legal foundations of evidence - These underpinning, non-legal factors of evidence directly affect the legal foundations. The same is true for the move towards fundamental nature of the law and towards the breaking up of subjective laws. In addition to the fact that there is a right to a fair trial, within which evidence occupies an important position, the idea strongly emerges above all of the law of evidence, suggested by the case law of the European Court of Human Rights and formally sanctioned by certain decisions of the Court of Cassation. In addition to this move towards the fundamental nature of the law of evidence, there is the issue of scientific progress, which makes it possible to get closer to the ideal of absolute truth. In probative terms, this leads back to the main purpose of evidence: is it guided by a search for truth? If the answer is yes, is it a truth in the sense of exact science or is there a completely relative legal truth? Are there not also other purposes that stand in the way of that search, cost for cost, for this truth, such as equity, confidentiality, fairness and personal dignity? On examination, the law of evidence therefore reveals the sometimes residual position that is allocated to a search for the truth. Rather than the truth, it is often a case of the plausible, plausibility or conviction in the context of fair proceedings.


5. The outlines of the law of evidence - Once the legal and non-legal foundations of evidence have been highlighted, it becomes possible to study the outlines of the law of evidence which are also very subtle. Traditionally, in French law, the probative system is made up of a trilogy: the purposes of the evidence - what needs to be proved? - the weight of evidence - who needs to provide the evidence? - and the means of evidence - how can it or should it be proved? -. To tell the truth, another somewhat modified trilogy may be proposed: the subject of the evidence, the collecting of evidence and the admission of evidence. This trilogy, although it conceals some dogmatism in the true sense of the term, may also be used as a model for reading French positive law.


6. The subject of the evidence - The subject of the evidence, an issue that is often reduced to the distinction between fact and law or between legal document and legal fact, proves to be a much richer source of instruction. Analysis of the subject of the evidence is an opportunity to focus on the inextricable link between substantive law and procedural law and the subsequent relativity between fact and law. Regarding the judge, an illustration would suffice to support this view: the division of roles between the expert and the judge cannot be satisfied with the factual dichotomy, in theory the expert's only area of competence, and the legal dichotomoy, which is under the judge's exclusive jurisdiction. The reality of the expert appraisal and the trial is more complex due to the porosity that exists between fact and law. Finally, the subject of the evidence highlights judicial policy choices that give meaning to the technical choices. This is the case for legal presumptions that exempt a person from drawing up the evidence of a deed or a fact. The explanation is of a political nature.


7. The collecting of evidence and the parties - The taking of evidence involves the parties and the judge. With regard to the parties, the issue refers to the burden of proof. Who should prove the alleged facts and who should bear the consequences in the event of doubt? The adage actori incumbit probatio (the burden of proof is upon him who affirms) is not sufficient to resolve all the issues raised. Thanks to the precision of doctrinal thought, particularly the idea of the burden of the allegation theorised by Henri Motulsky and J. Chevalier, and thanks to a bold legislator, the concept of the burden of proof has gained in pragmatic value. In this way, the vast majority of writers reject the idea of the burden of proof and prefer that of the risk of proof. A realistic approach to the trial actually leads one to think of proof in terms of risk: in the event of doubt, which party should lose the case? Also, there should be agreement about the criteria that make it possible to apportion this risk of proof. The proposals are numerous, ranging from the importance attributed to the position established for the criterion of aptitude to proof itself, via a reference to the concept of normality. To tell the truth, it is hard to find a dominant criterion. On examination, these criteria have more the appearance of simple indications. Moreover, attribution of the risk of proof is often not so much the result of logical reasoning but rather the product of a tactical choice.  Depending on the probative policy chosen, the authorities will allocate the risk of proof to one of the parties. Being aware of this political dimension, the issue of the risk of proof becomes more consistent.


8. The collecting of evidence and the judge - The collecting of evidence rests not only with the parties. It also concerns the judge. Showing "active neutrality", according to Jacques' Normand's expression, the judge, particularly before and during the trial, whether it is a civil, criminal or administrative trial, participates in the probative process, and through investigatory measures in particular. A fundamental question is now raised: the position of the expert and, in particular, compliance with the adversarial principle during the expert appraisal (3).  Study of the collection of evidence as far as the judge is concerned cannot proceed without a study of the application of article 145 of the Code of Civil Procedure, the probative reference, which has become the tool for a real procedural strategy. This tool makes it possible to order legally admissible investigatory measures when requested by any interested party, in urgent or summary proceedings, "if there is a legitimate reason to retain or draw up before any trial the proof of facts on which the resolution of a dispute may depend (...) ". This technique is now often used to dissuade the opposing party from undertaking main proceedings. This contrast between the collection of evidence and the judge is actually the transformation of a trial that is no longer inquisitorial or accusatory but adversarial (L. Cadiet), in compliance with the principles of a fair trial, particularly the principle of adversarial proceedings, a trend that is observed in numerous European legal systems.


9. The admissibility of evidence: freedom and public order - Finally, the admissibility of evidence is a mirror of values that criss-cross the law of evidence. What are the admissible means of evidence? To answer this question, a value-based step is required: what are the values that you wish to promote? The first series of values in dispute contrasts contractual freedom with public order. Proof is a risk and, in this sense, needs to be managed and apportioned. In order to do this, contractual clauses should be exploited without being abused. These conventions relating to evidence have a scope of application that has now been reduced as the result of a resurgence in public order. First of all there has been resurgence in the public order of protection, considering the clauses relating to evidence as unfair clauses, black or grey clauses, according to the clauses concerned (art. R. 132-1 and R. 132-2 of Cons. C.).    Then there is a resurgence of public order anchored in human rights, which goes on to limit contractual freedom. The same is true for probative agreements that limit the methods for proving a legal fact. The Court of Cassation does not hesitate to make use of the texts of the European Convention on Human Rights to deprive these clauses of any efficacy.


10. The admissibility of evidence: efficiency and fairness - The second series of values in conflict contrasts efficiency with fairness. Should priority be given to searching for the truth, giving pride of place to the effectiveness of the means of proof, particularly in the economic and criminal fields, or should one consider that, beyond truth, there is a more important principle of fairness? What matters nowadays, except for the position of private parties in a criminal trial and some other exceptions, is the idea that a fair probative process is a process governed by the principle of legality or fairness. Fairness has spread to all proceedings including those that take place before the competition authority and financial markets' authority which have allowed themselves to be seduced by principles that dominate civil proceedings thus distancing themselves slightly from the model of criminal proceedings. Apart from the case of fairness, the imperative for truth sometimes collides with values that are considered more important, such as the dignity of individuals, and respect for rights of privacy or professional secrecy.


11. The means of producing proof - Once the admissibility hurdle has been overcome, the means of producing proof still need to be determined. Documents still reign supreme in terms of evidence. This predominance of documents owes a lot to legal practitioners. Firstly, to notaries and their tool, the authenticated legal instrument, which provides legal safeguards; and maybe in the future lawyers, who suggest that a countersigned document is superior to a simple privately drafted deed. The reason for all the current torment lies mainly in the need to bring the law of evidence into line with new technologies. Electronic evidence, whatever the texts may say, is not identical to evidence in paper form and questions about the security of this electronic evidence multiply. Finally, how is one to consider collected evidence without saying a few words about unwritten evidence which, despite its traditional nature, continues to generate debate. This is the case for testimony, confessions or oaths.


12. Between modernity and humanity - The law of evidence is a reflection of private law in general and of the dominant social issues: the development of fundamental rights, the influence of the market model, the disruption caused by technological progress... French law has found a way, for better or worse, of tackling these problems with determination so as to construct a law of evidence that combines both modernity and humanity, and the passages from this new edition of the Henri Capitant Law Review will likely end up convincing even the most pessimistic.


___________________


(1) C. Lévi-Strauss, Anthropologie structurale [Structural anthropology], Paris, Plon, 1958, p. 325.

(2) E. Jeuland, Preuve judiciaire et culture française [Legal evidence and French culture], Droit et Cultures [Law and Cultures], no. 50, 2005, p. 149 et seq., spec. no. 6 et seq.

(3) See in this regard, Court of Cassation Mixed Chamber, 28 Sept. 2012, no. 11-11.381 and 11-18.710, J.C.P. [periodic legal encyclopaedia] (G), no. 46, 12 November 2012, 1200, note S. Amrani-Mekki.

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