This research paper outlines and then compares and contrasts the differing approaches of the American, English and French legal systems to the investigative custody or pre-trial detention of ordinary criminal suspects (those who are not aliens, spies, terrorists, juveniles or mental incompetents). For historical and constitutional reasons, stricter limits are placed on the ability of the authorities to hold suspects in custody in England and the United States than is true in France. The English system relies primarily on voluntary self-restraint by the police, operating within established judicial case law and, more recently, statutory codification of the rules regarding pre-trial detention. The American system relies primarily on federal and state procedural statutes, all subject to a written Bill of Rights and court decisions safeguarding the rights of the criminally accused. The French operate under a Code of Penal Procedure which affords the authorities, prosecution and police, especially when they act pursuant to the mandates of a juge d'instruction (JI) or investigating magistrate, broad latitude to detain for extended periods suspects in serious cases. In practice, the differences among the three systems are less striking and less protective of the rights of criminal defendants than they are in theory.
1. Historical and Constitutional Framework
Codes of Criminal Procedure. Decisions to hold suspects in custody are governed directly by codes of criminal procedure, in the United States the Federal Rules of Criminal Procedure (FRCRP) and state codes of criminal procedure, in England the Police and Criminal Evidence Act (PACE), 1984 and other Acts of Parliament and in France, the 1808 Code de ProcTdure PTnale (CPP), which was extensively revised in 1992. In each country, those codes are themselves the products of, and operate within, broader historical and constitutional frameworks as well as international legal norms, ...