“The Intersection of Two Systems:…” by Lerner

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Table of Contents

Brief summary and three main points of the article
Analysis of three important points of the article
Conclusion
Reference List

Brief summary and three main points of the article

Lerner (2001) provides a detailed description of the case which can be regarded as exemplary in many respects. One of the major peculiarities of the case, which is stressed by the author himself, is that the case is international in its nature. Thus, Thierry Gaitaud, an American citizen, who killed Americans in the territory of the USA, is tried in France. This becomes possible due to the defendant’s background, i.e. his parents are French.

The extradition treaty between the USA and France permits “France to refuse to extradite its own citizens” (Lerner 2001, p. 2). More so, France “has been reluctant to extradite suspects who may face the death penalty” and Gaitaud is likely to face it if tried in California (Lerner 2001, p. 3). Lerner (2001) emphasises that the number of such cases will increase in the course of time due to the globalisation. Thus, the author stresses that this case requires special attention as similar cases are likely to become more common in the nearest future.

Another important point highlighted by the author is concerned with the role of the judge in the investigation. Lerner (2001) notes that the judge plays a pivotal role during the trial as well as before it. The judge looks into the case and analyses evidence before the trial starts. The author stresses that this is beneficial for the defendant who does not have to rely on his/her lawyer. Thus, even though the defendant can have limited resources and hire less qualified lawyer, his interests will be secured by the system as the judge will try to reveal all possible pieces of evidence and analyse them properly (Lerner 2001, p. 14).

The third major point to consider is concerned with the time spent in custody before the trial. The author reveals a lot of advantages of the French judicial system and tends to stress that it is fair and transparent. However, Lerner (2001) also sheds light on some drawbacks. The author argues that the French judicial procedure may take quite a long time (Lerner 2001, p. 19). The author notes that custody of five years (before the trial) is common in France, especially when it comes to grave crimes. During this time, the accused can request that he/she “be released” (Lerner 2001, p. 19). However, the cases when those accused of serious crimes were released are very rare.

Analysis of three important points of the article

The role of the judge

Lerner (2001) pays a lot of attention to the distribution of roles during the trial. It is necessary to note that the roles differ in French and Australian courts. This difference is quite a disputable issue as some scholars support the French system, while others argue that Australian model (which is similar to the British and American ones) is more effective. Thus, French judges dominate during the trial. Lerner (2001) notes that this is effective as it ensures fairness and precision.

On the one hand, it is beneficial for the defendant as his/her lawyer may be less experienced or qualified to analyse evidence. A lot of researchers stress that Australian legal system is far from being affordable and many people are in less favourable situation than such opponents as governmental organisations or big companies who can hire high-profile lawyers (Unaffordable and out of reach 2012). On the other hand, some researchers argue that the judge cannot have too many responsibilities and too much power (Meek 2008). Therefore, the judge should be well-educated and experienced.

Kirby (2006) emphasises that interpretation of law tends to be subjective, to certain extent, and is the matter of discussion. The author notes that Australian judges sometimes make controversial conclusions. Whitton (2010) points out that judges do not get special training as lawyers or prosecutors do. The author argues that judges are former lawyers or prosecutors who are educated to defend or prosecute, they are not taught to analyse evidence and judge. Therefore, a lot of researchers believe that the power of the judge should also be limited. Nonetheless, French tradition provides new horizons for Australian system. This approach can help Australia handle the issue of affordability and fairness. There is one important condition to this change, i.e. future judges must get proper education to be able to take the new role.

The role of the defendant

One of the most striking peculiarities of French trials is that the defendant can take his stand in contrast to American as well as Australian trials where the defendant is “shielded” from testifying (Lerner 2001, p. 50). Pakes (2012) notes that this approach enables the jury and the judge to get more details. Lerner (2001) argues that when the defendant provides his viewpoints and tells his story by him/herself, he/she can be sure that the events and his/her own words are not distorted in any way. The author emphasises that this is beneficial for defendants who have scares resources and who cannot afford high-profile lawyers (Lerner 2001).

Meek (2008) has another view point on the matter. The author claims that lawyers try to help defendants “to protect the defendant against her or himself” (Meek 2008, p. 95). Meek (2008) notes that defendants can say something which can be used against them as the plaintiff can use any situation or even any word to win the case. These two opposite views suggest that Australian as well as French approaches have advantages and downsides.

Holistic approach

Apart from the roles set, Lerner (2001) distinguishes one more distinctive feature. The author notes that it is a very important advantage of the French trial. At the Australian trial, only facts concerning the clues and the details of the crime are taken into account. In contrast to this approach, at French trials the defendant’s background (cultural peculiarities, social status, education, financial well-being, etc.) is also taken into account.

Pakes (2012) states that, at French courts, the jury not only tries to understand whether the defendant actually did it, but why he/she did it. Lerner (2001) stresses that it is effective as it enables the trial to be fair as all facets of the issue are taken into account. At the same time, at Australian courts some meaningful details are often missed or ignored as the Australian legal system is based on the common law practised in the UK or the USA.

Conclusion

On balance, it is necessary to note that Lerner (2001) provides valuable insights into the peculiarities of the French legal system. The author also reveals major differences between French and American trials. The researcher focuses on the roles played by the judge, the jury and the defendant. Lerner (2001) also stresses that the French trial is more transparent and it is fair. The French trial secures rights of the defendant as the judge analyses and presents the evidence. Therefore, the defendant does not have to rely on his/her lawyer, which is beneficial for defendants with limited resources. Notably, the French trials seem to be more effective in some respects. Therefore, it is possible to take into account the French system while reforming the Australian legal system which has lots of drawbacks.

Reference List

Kirby, M 2006, Precedent – report on Australia. Web.

Lerner, RL 2001, The intersection of two systems: an American on trial for an American murder in the French cour d’ assises. Web.

Meek, MK 2008, Australian legal system, Lawbook Co, Pyrmont, N.S.W.

Pakes, F 2012, Comparative criminal justice, Routledge, Portland, OR.

Unaffordable and out of reach: the problem of access to the Australian legal system 2012. Web.

Whitton, E 2010, Our corrupt legal system, Book Pal, Sydney.

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