Habeas Corpus à la Française

Despite all of the complaining we do about our criminal justice system in the U.S., we still may have the best court system on Earth (now you won't hear any such statement out of me about the laws that those courts enforce). French President Nicolas Sarkozy said he wanted to move away from the investigating magistrate system his country has had for 200 years, to "guarantee the rights of people under investigation." From Time:

"It's time for the investigating magistrate to make way for a magistrate of the investigation, who will supervise inquiries but will no longer direct them," Sarkozy said. He argued that it has become impossible to demand the absolute neutrality and presumption of innocence Napoléon expected the independent judges to have when he created the post in 1804. "How can we ask him to take coercive measures, measures touching on the intimacy of private lives, while he is above all guided by the needs of his investigation?" Sarkozy asked.

But opponents say the change won't work unless France scraps its entire inquisitional justice system and replaces it with the adversarial process that countries such as the U.S., the U.K. and Germany use. In contrast to those systems, which allow the prosecution and defense to battle each other directly by building their own cases that are decided in court, France's system gives investigating judges the mission of collecting all possible evidence and testimony with an eye to presenting court officials the most complete picture of facts and the truth. Sometimes findings exonerate suspects; other times the investigation paints a picture of guilt leading to a slam-dunk conviction.

Meanwhile, Japan - where the conviction rate is 99.8 percent and the rate of confessions is an unbelievable 92 percent - has spent five years building a new system using six-person juries and three-judge panels that vote by majority on convictions and sentencing. The juries launch in May and it will be interesting to see what happens.

Both France and Japan are working to return to a presumption of innocence. But if the U.S. experience is any guide, that can be a hard standard to achieve.