Fiona Feng
In the French film Anatomy of a Fall, a Cannes’ Palme d’Or winner directed by Justine Triet, Sandra (Sandra Hüller) goes on trial following the discovery of her husband Samuel’s body outside their house. Thematically, it’s very important for the court to play the dramatic recording between Sandra and Samuel on trial, which uncovers their troubled past, Sandra’s infidelity, Samuel’s jealousy of Sandra’s achievements, and the unease of adopting a household language that is neither Sandra nor Samuel’s mother tongue. However, since the recording was taken secretly by Samuel and thus was produced without Sandra’s knowledge or consent, is the recording even admissible as evidence on Sandra’ trial?
The answer is likely to be yes. French criminal law adopts the principle of freedom of proof, which is articulated by Article 427 of the French Criminal Procedure Code.[1] It provides that “except where the law provides otherwise, offences may be established by any method of proof and the judge shall decide on the basis of his or her own personal conviction.”[2] Consistent with this principle, the Criminal Chamber of the Cour de Cassation ruled in several important cases that judges should not reject evidence presented by the parties merely because it was obtained unlawfully or unfairly.[3] Jacqueline Hodgson, an expert on French criminal justice, explains that the recording between Sandra and Samuel is admissible because French criminal courts want to bring in as much information as they can without being constrained by evidence admissibility rules.[4] The idea behind is that any evidence, unfairly obtained or not, would be considered by a judge rather than a jury, and the judge can decide how much weight he should give to that evidence.[5]
Although the recording is admissible for Sandra’s criminal trial, its admissibility is more debatable if Sandra were on a civil trial. Traditionally, unlike criminal cases, unfairly obtained evidence is generally inadmissible for civil cases.[6] This is because the admissibility of evidence in civil cases is governed by the principle of fair proof, which is established in article 9 of the Code of Civil proceedings, and the French civil judges had interpreted the article by implying a condition of fairness in obtaining evidence, leading them to reject unfairly obtained evidence.[7] The recording in the movie, which was taken without Sandra’s consent, would serve as a classic example of unfairly obtained evidence and be viewed as especially prejudicial to a party’s privacy right.[8]
The disparity between criminal and civil courts’ approaches to assess parties’ right to evidence had led litigants to prefer the criminal track over the civil track when they have a choice to classify the same set of facts as criminal or civil.[9] However, in several recent cases, the French Supreme Court departed from its traditional stance on rejecting unfairly obtained evidence altogether.[10] It effectively overturned its case law, holding that judges should not reject evidence solely on the grounds that it had been obtained unfairly, and instead required them to conduct a proportionality and necessity test when deciding whether to admit unfairly obtained evidence.[11] More specifically, the French Supreme Court asked judges to assess whether the production of the evidence is “indispensable to the exercise [of the right to evidence] and that the infringement is strictly proportionate to the aim pursued.”[12] Despite this radical evolution from previous case law, one should not equate the new conditional admissibility standards in French civil law with the admissibility standards in criminal law. The proportionality test is a substantive requirement, as evident by a labor case decided on 17 January 2024, in which the French Supreme Court affirmed the Court of Appeal’s decision to reject an unlawful recording attempting to establish psychological harassment.[13] The court reasoned that psychological harassment could be proven by other lawful means and thus, the recording did not satisfy the proportionality and necessity test.[14] Similarly, if various legally relevant facets of Sandra’s marriage could be potentially shown by other lawful means, there would be weaker legal justifications, despite strong thematic justifications, to play the recording on a civil trial.
[1]Ella Gomes, Julie Zorrilla & Sarah Haidar, A Flexible Approach of the Principle of Loyalty Regarding the Evidence in Civil Matters – Analysis of the Judgment of the Plenary Assembly of 22 December 2023, Navacelle (Feb. 26, 2024), https://navacelle.law/a-flexible-approach-of-the-principle-of-loyalty-regarding-the-evidence-in-civil-matters-judgment-of-22-december-2023/ [https://perma.cc/QMG8-BKER] [wayback machine].
[2]Code de procédure pénale [C. pr. pén.] [Criminal Procedure Code] art. 427 (Fr.).
[3]Gomes, Zorrilla & Haidar, supra note 1.
[4]Jessica M. Goldstein, A French Criminal Justice Expert Answers All Our Questions About Anatomy of a Fall, Vulture (Mar. 22, 2024), https://www.vulture.com/article/anatomy-of-a-fall-trial-explained-by-a-french-law-expert.html [https://perma.cc/9XMR-VT2F] [wayback machine].
[5]Id.
[6]Frédéric Bourguet, France: Image Rights, Rödl & Partner (Apr. 3, 2024), https://www.roedl.com/insights/france-image-rights [https://perma.cc/4464-U923][wayback machine].
[7]Fairness of Evidence: More Flexibility in Obtaining It…But Not in Presenting It to the Judge in Intellectual Property Matters, JP Karsenty & Associés (Jun. 12, 2024), https://www.jpkarsenty.com/en/fairness-of-evidence-more-flexibility-in-obtaining-it-but-not-in-presenting-it-to-the-judge-in-intellectual-property-matters/ [https://perma.cc/R9S6-U2P6] [wayback machine].
[8]Id.
[9]Id.
[10]Bourguet, supra note 6.
[11]Id.
[12]JP Karsenty & Associés, supra note 7.
[13]Bourguet, supra note 6.
[14]Id.