The Caillaux Drama

by John N. Raphael

Another feature of the preliminary stages of a French criminal trial is the manner in which the evidence which the examining magistrate collects is made public as he collects it. The examining magistrate receives members of the Press during the days, weeks, and often months of his preliminary examination of the evidence, and to all intents and purposes the evidence which has been laid before him is put at their disposal for publication. It is very rarely indeed that an examining magistrate in France withholds any of the evidence he collects from the newspapers, and as each item is usually laid before the public, commented on at length, and frequently distorted in accordance with the views of the staff of the newspaper which reproduces it, the public try a case while it is in process of trial, and the newspapers criticise the examining magistrate’s conduct of the long examination and deliver a verdict of their own before the jury have an opportunity of doing so. These methods form part of the legal code of France, and as such, open to criticism though they may be, are never criticised. The methods of preliminary trial of a French criminal case present of course this grave disadvantage, that every one of the twelve jurymen and the two supplementary jurymen before whom the case is tried, practically hear or read all the evidence before they see the witnesses and hear them in court, and practically have tried and have judged the case in their own minds, however impartial they may try to be, before they come into court to try and to judge it.

I have already mentioned the freedom of action which the examining magistrate enjoys in France. This is unlimited. An examining magistrate is hampered by nothing at all in his examination of the prisoner, or of witnesses for and against, except by the dictates of his own conscience. As it is human nature for a man to shrink from the acknowledgment that he has been mistaken, it is obvious that a French examining magistrate who starts with the idea that his prisoner is a guilty man or woman will do everything in his power, and his power has no limit except his own conscience, to prove the guilt of his prisoner. He may, and often does, use dramatic methods to force a confession. He may, and often does, lie to the prisoner for the purpose of extracting a confession. He may, and often does, misreport to the prisoner evidence which has been given him so as to entrap a guilty prisoner, whom he can manage to convince that the game is up, into a full confession of guilt. There have been many cases known of abuse of this power. It has happened before now that a prisoner, accused of a crime of which he or she is perfectly innocent, has actually confessed to the crime rather than endure the mental torture of the examining magistrate’s persistent cross-examination.

And in the hands of an unscrupulous man, even when that man honestly believes in the guilt of the prisoner he is examining, mental torture is not the only form of torture which may be inflicted. Of course there are no thumbscrews, rack, or water torture in existence in France nowadays, but there are other and more refined methods of coercion which an examining magistrate may use, and often does use, against the prisoner whose case is under consideration. Pathetic mention of these methods was made, I remember, during the trial of the motor bandits by one of the prisoners whom the court afterwards acquitted. All the small comforts which a prisoner (a prévenu is the French expression) may enjoy while awaiting trial rest entirely on the good or ill will of the examining magistrate, and he is paramount to permit them or to remove them, as his will or his fancy dictates. During these preliminary stages of the trial nobody has any right to interfere with an examining magistrate or to question his decision on any matter whatsoever. The prisoner’s lawyer or the prisoner may of course protest, and the protest must be registered by the clerk, who is always present. But it rests entirely with the examining magistrate how much severity and how much leniency are shown to the prévenu while the preliminary trial proceeds.

Another thing which remains entirely at the examining magistrate’s discretion is the length of this preliminary trial. He is free to conclude his examination when he wills. As soon as he considers that the evidence he has collected is sufficient to allow him to send the case for trial, and to hand his opinion on it, with the reasons for his opinion, to the judges, the date of trial is fixed. He may send in this opinion in a few days, he may take many months over it if he wishes, and though the imprisonment of a prisoner before trial ranks as part of the sentence after conviction, an examining magistrate who has taken a very long time over his preliminary examination may inflict very serious hardship on a prisoner whom the assize court acquits at the end.

In the case of Madame Caillaux it is probable that the trial will come on in July or possibly even after the holidays, in September. It is in everybody’s interest that the trial should not be heard too soon. The judges need time to probe every tittle of the evidence, the Government—though the Government will hardly dare to interfere, I think—will prefer the case to be heard when Paris is comparatively empty, and the defence will find in a long detention in Saint Lazare pending her trial a useful argument for mercy to the prisoner.

The work of an examining magistrate in France is conducted with a curious absence of formality. The prisoner or the witnesses come to his room in the Palace of Justice, and in the case of a prisoner the guards withdraw. The magistrate collects his evidence in a very conversational way. He chats with the prisoner and with the witnesses whom he calls, he interrupts them, he bullies them if he thinks fit, he allows them to speak or he reads them a lecture, exactly as he likes, he makes statements, and takes note of contradictions, and he frequently calls three or four witnesses together and allows them to discuss points in the case while he listens to the discussion.

This method, I may remark, is often a very fruitful means of getting at the truth. The absence of formality has often proved to be a great help to the course of French justice. The French law and English laws have very different ideas on the subject of evidence. To give an idea of what is considered perfectly relevant and perfectly admissible evidence in France, Madame Caillaux, during the course of her preliminary examination by Monsieur Boucard, the examining magistrate in charge of her case, made the following extraordinary request to him. “I am informed,” she said, “that, in the opinion of the great surgeon Dr. Doyen, the life of Monsieur Calmette might have been saved after I shot him if he had been treated differently.” Madame Caillaux’s contention was that the doctors who attended Monsieur Calmette after she had shot him might have treated him in such a way as to ensure his recovery, and she asked the examining magistrate to call Doctor Doyen, who, after reading the report of the autopsy made by the sworn medical experts after Monsieur Calmette’s death, was of the opinion that the surgeons who attended him might have saved his life. Evidence of an equally irrelevant nature is considered perfectly admissible in any French criminal trial, and evidence as to character and motive very frequently admits in France of an immense abuse of the examining magistrate’s time. In the Caillaux case, for instance, friends of the murdered man have been prolific with evidence to the effect that from their knowledge of Monsieur Calmette they consider it most unlikely that he would ever have printed the letters which play so large a part in the evidence for the defence, and the publication of which Madame Caillaux feared and anticipated.

An immense amount of time has been taken up already with the hearing of witnesses who had nothing to say except to report that somebody had told them something of which knowledge had come to him from the report of somebody else, and friends of Monsieur and Madame Caillaux as well as friends of Madame Caillaux’s victim have been allowed to spend hours in the examining magistrate’s office at the Palace of Justice making speeches on behalf of the prisoner or against her which were sometimes interesting, which were more or less convincing, but which very rarely formed any real evidence such as evidence is understood in England. And all the while the collection of evidence goes on it is published in the newspapers day by day and commented on at will. More than this, witnesses, after their examination by the examining magistrate, are interviewed in the newspapers, and columns of what they have said, often with very little bearing on the case at all, often the mere expression of opinion, are published. Sometimes the publication of these interviews gives curious results. There have been cases where a witness has said little of interest in the examining magistrate’s room, and has been so effusive to a journalist afterwards that another visit to the examining magistrate has become necessary, and has secured evidence of value.