A Critical Comparison of Lay Participation in the French Cours d’Assises with the United States Criminal Jury
Meredith Die Levine
Abstract
In this coursework for the module „Comparative and International Criminal Justice“, the author compares the jury in the United States with its French counterpart. She describes the different systems, the selection of jurors, the composition of the jury, the proceedings and the decision-making process.
In dieser Studienarbeit für das Modul „Vergleichende und internationale Strafjustiz“ vergleicht die Autorin die Jury in den Vereinigten Staaten mit ihrem französischen Pendant. Sie stellt die verschiedenen Systeme dar, die Auswahl der Geschworenen, die Besetzung des Schwurgerichts, das Verfahren und die Entscheidungsfindung.
I. Introduction
Although lay participation in the criminal courts of France and the United States take different forms and are situated within very different legal traditions – investigative/civil-law in the former and adversarial/common-law in the latter – both share roots in 18th century revolution and democratic ideals. Lay involvement in the French criminal justice system is now found exclusively1 in the cours d’assises jury, a mixed panel of nine (when sitting as a court of first instance), composed of six lay assessors and three professional assessors drawn from the judiciary (Germain 2021, 219). The modern American criminal trial jury is entirely lay, meanwhile, and although it may vary in size depending on the jurisdiction, is usually made up of twelve jurors.
II. The French Jury: History, Recent Reforms and Current Incarnation
Lay involvement in the cours d’assises has its origin in the upheaval of the French Revolution at the end of the 18th century, when ideas such as the principle of intime conviction (conviction of the mind and spirit independent of prosecution or defence argument) were first introduced (Germain 2021, 219; Bonnieu 2001, 559-560). The cours d’assises has been so named since 1808 (Bonnieu 2001, 561); at that time, lay assessors were viewed as a remedy to the tyranny of absolute monarchy and as a democratic guarantee for criminal defendants (Bonnieu 2001, 560). Lay jurors sat alone in the cours d’assises until 1941, when members of the judiciary were added, making the cours d’assises a mixed court system (Germain 2021, 219). Despite the inclusion of professional judges, in France this mixed system is considered a jury (Germain 2021, 219); this may be because, as legal scholar and examining magistrate Michel Bonnieu has observed, lay assessors are placed under oath, so „the jurisdiction of the lay assessors is not different from that of the professional magistrates“ (Bonnieu 2001, 563).
The cours d’assises are not permanent courts; they sit periodically in every département of the French state, from which each cour d’assise takes its name (Bonnieu 2001, 560-561). There is only one cour d’assise in each département; in particularly populous areas the court is split into sections, which can be held simultaneously (Bonnieu 2001, 561). Each cour d’assise is constituted via appointment of three professional judges (the President, appointed first, and two other professional assessors) and by random selection from electoral lists of the appropriate number of lay participants (generally 35 plus 10 alternates) (Bonnieu 2001, 562-563).
From this list of lay assessors, six lay participants (Loi 2011-939) plus alternates are drawn by the President „in open court, just before the examination of each case“ (Bonnieu 2001, 563). Both the defence and the prosecution have the right to exclude jurors without giving any reason; the defence has five automatic juror challenges, while the prosecution has four (Bonnieu 2001, 563). When the complete list of cases has been adjudged the session is closed and the court is disbanded; a session of the cours d’assises usually lasts between fifteen days and three weeks (Ministère Chargé de la Justice 2024, at ‘Comment s’exerce la function de juré?’ para. ‘Durée’).
Crucially for comparative purposes (as will be discussed further below), the mixed panel of the cours d’assises is collectively responsible for „all questions of law, fact, guilt and sentence” (Bonnieu 2001, 563). According to Bonnieu (2001, 563), the lay and professional jurors determine the „ascertainment of truth and the procedural fairness of the criminal trial“. Lay assessors have the right to put questions to the defendant and witnesses after the President has authorised them to do so (Bonnieu 2001, 563); otherwise, they are prohibited from expressing their own opinions in court and may not engage in any behaviour that would suggest such an opinion, such as nods or sighs (Bonnieu 2001, 564). Lay assessors are subject to an ongoing obligation of confidentiality regarding anything having to do with a case, even after adjudication is complete (Bonnieu 2001, 564).
Cours d’assises verdicts are not unanimous; previously, verdicts required either a simple majority or a two-thirds majority, but since 20222, any decision unfavourable to the accused requires a majority of seven votes (of nine) in the first instance, and eight (of twelve) when the cour d’assise is constituted as a larger appellate court (Code de Procédure Pénale, Art. 359). Sentencing decisions require only an absolute majority unless rendering the maximum custodial sentence, in which case these increased majorities are again required in the first instance and on appeal (Code de Procédure Pénale, Art. 362).
A final procedural point of interest is the partie civile: in French law, a victim can join his or her civil claim for damages to a criminal prosecution before any French criminal court, including the cours d’assises (Code de Procédure Pénale, Art. 2). Lay jurors do not participate in this portion of the judgement; after the full jury decides guilt and sentencing, the professional judges alone consider the civil party’s request for damages – and the defendant’s request for damages (if any) against the civil party (Germain 2021, 220). Nevertheless, the partie civile procedure provides a formal role for the victim and their lawyer in the proceeding before the mixed court, something notably absent in most (if not all) common law jurisdictions.
Finally, and perhaps most significantly for lay participation in the modern French criminal justice system, the French legislature introduced a new criminal court in 2019: the cour criminelle départementale (Germain 2021, 225). Cases in these courts are heard by a panel of five professional judges with no lay jurors (Code de Procédure Pénale, Art. 380-17). Previously, cours d’assises juries had jurisdiction to adjudicate those serious crimes punishable by more than ten years imprisonment: mainly murder, rape, or thefts with violence (Germain 2021, 219). Less serious crimes than these were already heard by lesser criminal courts with no lay involvement (Germain 2021, 221).
Since the cours criminelles départementales were expanded nationwide in 2023, however, first-time adult offenders accused of a crime punishable by fifteen to twenty years of imprisonment must be tried in the first instance in these new courts, rather than in the cours d’assises (Code de Procédure Pénale, Art. 380-16). This greatly reduces the volume of cases heard by the cours d’assises. Writing prior to the national expansion of the new courts, Germain anticipated a reduction of 60 % or more to the cours d’assises docket (Germain 2021, 225). This may have been a conservative estimate. The effect in practice has been to remove nearly all rape cases from the jurisdiction of the cours d’assises sitting in the first instance; even the infamous Pelicot trial was heard in the Avignon cours criminelle départementale (Marini and Bossard 2025, para. 3). Its appeals will be heard by the expanded appellate cours d’assise jury, however (Marini and Bossard 2025, para. 2). Thus, the cours d’assise jury endures, both as a court of the first instance for crimes such as premeditated murder, and as an appellate court hearing trials de novo on appeal from lower criminal courts.
III. The Criminal Trial Jury in the United States
In contrast to the investigative/inquisitorial, largely judge-led civil law tradition to which France belongs (Kutnjak Ivković and Hans 2021, 332), the United States is a common-law jurisdiction with an adversarial legal tradition. Indeed, representations in film and on television often portray the American criminal jury trial as the ne plus ultra of adversarial procedures: an evidentiary battle between prosecution and defence lawyers for the hearts and minds of twelve lay jurors, observed throughout by a „passive judge who acts as a referee“ (Kutnjak Ivković and Hans 2021, 332). The reality of the U.S. criminal justice system is somewhat less entertaining, unfortunately, although certainly more nuanced – and surprisingly, perhaps not as far in practice from the French system as appearances suggest.
Historically, trial juries as finders of fact were used in both England and the English North American colonies prior to the American Revolution (Lempert 2015, 825-826). From the time of the decision in Bushell’s Case in 1670, jury acquittals in criminal cases have been final in America; there is no prosecutorial appeal from an acquittal in U.S. criminal justice (Lempert 2015, 826-827). Jury trials were therefore already a familiar way to resolve disputes by the time of American independence, when they achieved new heights of popularity as a means of negating unpopular laws against the weight of the evidence (Lempert 2015, 827). Popular trust in the jury as an „icon of liberty“ (Lempert 2015, 827) and bulwark against tyranny resulted in the inclusion of the right to a jury trial in both criminal and civil cases in the new United States Constitution and the Bill of Rights (King 2000, 94; U.S. Const. Art. III, § 2, cl.3.; U.S. Const. Amend. VI and VII).
Initially, the Constitutional right to a jury trial was limited due to principles of federalism, and held to apply only to prosecutions in federal courts for violations of federal criminal law (King 2000, 95). To this day, the „great preponderance“ (Galanter 2004, 504) of U.S. criminal prosecutions take place in state court; in the early days of the Republic, nearly all crimes were state crimes, and therefore federal prosecutions represented only a tiny fraction of the total (King 2000, 95). Many state constitutions during this era extended jury trial rights to criminal defendants, but these were not uniform. Then, in 1968, the United States Supreme Court extended the Sixth Amendment right to a jury trial in criminal matters to all state citizens (Duncan v. Louisiana, 391 U.S. 145 (1968), 156), holding: „providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge“. Since 2020, jury convictions in all state and federal courts must be unanimous (Ramos v. Louisiana (2020) 590 U.S. 83).
More than 90 % of American criminal jury trials today are held in the 51+ state and territorial courts, where they are governed by varying state constitutional provisions, state statutes, and state and local (county, district, or judge-specific) court rules (King 2000, 96). As a result, it can be difficult to be numerically precise in discussions about evolving American jury trial practice, although broad trends are observable.
One such trend is that although the U.S. Supreme Court has consistently strengthened and expanded the right to a jury trial over the last sixty years, fewer and fewer criminal defendants elect to exercise that right (Lempert 2015, 829, citing Galanter 2004). At the end point of the data in the Galanter study of studies „The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts“ in 2002, jury trials typically accounted for less than three percent of all case dispositions, criminal and civil, in state and federal court (Lempert 2015, 829, citing Galanter 2004), and under five percent of federal criminal dispositions (Galanter 2004, 493). Somewhat surprisingly, Galanter calculated that the trial rate (civil and criminal, for both bench and jury trials) in state jurisdictions3 had declined to as low as 0.6 percent of all dispositions (Galanter 2004, 508). Trials of any type (bench or jury) accounted for only 3.3 percent of state criminal dispositions for which data was available (Galanter 2004, 510): jury trials accounted for a mere 1.3 percent of all criminal dispositions, while bench trials accounted for 2.0 percent (Galanter 2004, 510).
Additionally, although the total number of dispositions steadily increased along with the population, the number of trials – whether to a bench or jury – fell (Galanter 2004, 510). Galanter partially accounts for this by observing that „judicial involvement in [pretrial] case activity […] has increased“ (Galanter 2004, 481).
Lempert’s analysis takes this reasoning further: in a discussion rebutting European criticism of seemingly „unreasoned“ American jury verdicts, Lempert argues that these criticisms reflect misperceptions regarding how juries’ decisions are constrained by the trial judge (Lempert 2015, 836). The judge shapes and controls the trial (Lempert 2015, 837), not merely through substantive legal instructions to the jury but through pretrial and trial rulings as the trier of law. Judges rule on pretrial motions to dismiss all or a portion of cases, on motions in limine (excluding or limiting the use of evidence), on the admissibility of expert testimony and expert reports, and on the admission or limitation of testimony from fact witnesses, all before the jury is even empanelled. At trial they rule on objections as they occur in the examination of witnesses, summarise the law for the jury, and provide the jury charge for the jury to complete as they deliberate, a process substantially similar to the French feuille de questions. Much of this activity shields the jury from any knowledge of inadmissible or „bad evidence“ (Lempert 2015, 832-833).
Judges in the modern American jury trial system therefore have a formal role and a degree of power that allows them to shape – and sometimes script – nearly every element of the criminal trial and the jury’s trial experience. Moreover, plea bargaining between the prosecution and defence takes place against the backdrop of anticipated decisions by the judge (as trier of law) and the jury (as trier of fact). The high percentage of negotiated resolutions in lieu of trial reflects the efficiency of this process. As Galanter (2004, 525) observed regarding civil matters – although the reasoning applies equally to criminal cases – „legal contests [have therefore] become more like those in the civil law, not a single plenary event, but a series of encounters with more judicial control, more documentary submission, and less direct oral confrontation“.
IV. Conclusion
Thus, although it runs counter to the popular conception of the American criminal trial jury, judges are heavily involved in American jury trials in ways that are likely not immediately apparent to lay observers. Germain (2021, 220) has argued that the role of the presiding judge at the cours d’assises is much more active than the trial judge in the United States, but perhaps this assessment – like the idea of the passive judge – is based on incomplete information. In the French cours d’assise the empanelled judges and lay jurors together try the law and the facts, whereas in the American criminal jury trial the judge rules on questions of law prior to (and sometimes after, as a backstop) the jury’s ruling on the facts. One system is combined and simultaneous, and one is sequential; and as it seems likely that the French professional assessors on the cours d’assises would in practice determine the questions of law, rather than the lay assessors (who would not have the expertise), the two systems of lay participation may not be as different as they seem. The most significant differences between the two systems of lay participation may therefore lie in details such as the permissibility in France of non-unanimous verdicts (illegal in the U.S. since 2020), and the French prosecution’s ability to appeal from an acquittal.
References
Arrêté du 18 mars 2013 mettant fin à l’expérimentation des dispositions prévoyant la participation de citoyens assesseurs au fonctionnement de la justice pénale [Order of 18 March 2013 ending the experiment of provisions providing for citizen assessor participation in the criminal justice system], 22 March 2013, Journal Officiel de la République Française [Official Gazette of France], p. 4897.
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- The French government experimented with expanded lay participation in criminal courts beyond the cours d’assises from 2011-2013. These efforts were abandoned following widespread opposition from the legal profession, particularly judges (Germain 2013, 223-224, citing Arrêté du 18 mars 2013). ↩︎
- French criminal procedure has been substantially amended in the 21st century. First, in 2001, following pressure from the European Court of Human Rights (ECHR), France provided for appeals from the cours d’assises in the form of trials de novo before an expanded appellate cour d’assise (Germain 2021, 221, citing Loi 2000-516). Second, again following ECHR pressure, France addressed the absence of reasoned verdicts in criminal matters decided by jury, and in 2012 began requiring professional assessors to complete feuilles de questions (question sheets) and feuilles de motivation (motivation sheets) (Germain 2021, 222; Code de Procédure Pénale, Art. 365). Further reforms in 2014 and 2016 provided defendants the right to remain silent and the right to an interpreter, gave the parties the right to obtain documents from the file (previously only available to the President of the jury), and required recording of the proceedings (Germain 2014, 230, citing Loi 2014-535 and Loi 2016-731). ↩︎
- Not all state court trial data in the U.S. is readily available. Galanter reviewed the number of trials in the „courts of general jurisdiction of 21 states (and the District of Columbia) that contain[ed] 58 percent of the U.S. population for the years 1976 to 2002” (Galanter 2004, 506). ↩︎
Suggested citation: Meredith Die Levine, A Critical Comparison of Lay Participation in the French Cours d’Assises with the United States Criminal Jury, in: LAIKOS Journal Online 3 (2025) Issue 1, pp. 13-16.