Cour d'assises: the President alone decides whether to read depositions, the Court cannot order him

Imagine: you own a house in Carentan, and a trial opposes you to your neighbour concerning a right of way. The key witness, a former resident, does not appear at the hearing. Can the President of the Cour d'assises order the reading of his written deposition? And if the Court itself orders him to do so? This 1969 decision answers a crucial procedural question: who decides?

For any litigant, understanding the division of powers within a court is essential. Because if the Court exceeds its prerogatives, the entire proceedings may be challenged. Here, the Court of Cassation rules: the President has discretionary power (i.e., he freely assesses, without having to justify) to read or not read the deposition of an absent witness. The Cour d'assises cannot compel him.

This case, although old, remains an absolute reference for all legal professionals. It illustrates a fundamental principle: the separation of powers within a court itself. And it concerns you if you are involved in a criminal trial, whether as a victim, accused, or simple witness. So, what happened?

The facts: a story like any other

In 1968, a trial took place before the Cour d'assises of Manche, in Cherbourg. The case: a robbery with violence committed near Valognes. The main prosecution witness, Mr Dupont, a local farmer, was summoned but did not appear on the day of the hearing. He was absent without valid excuse. The prosecution (the public prosecutor) then asked the President of the Cour d'assises, under Article 346 of the Code of Criminal Investigation (now Article 347 of the Code of Criminal Procedure), to read the written deposition that Mr Dupont had made before the investigating judge.

The President hesitated. He considered that the witness could be found, and that reading the deposition without adversarial debate (without the accused being able to ask questions) might prejudice the rights of the defence. He therefore refused to read it. The Cour d'assises, composed of three professional judges and six lay jurors, disagreed. It considered the deposition crucial for the establishment of the truth. By a deliberation, it ordered the President to proceed with the reading.

The President complied, but the accused's lawyer, Mr Leblanc, immediately appealed in cassation. He argued that the Cour d'assises had exceeded its powers by giving an order to the President, which falls within his discretionary power. The case therefore went up to the Court of Cassation, which had to decide: who, the President or the Court, has the final say on reading depositions?

The reasoning of the court — dissected

The Court of Cassation quashed (annulled) the decision of the Cour d'assises. Its reasoning is clear: the President of the Cour d'assises has, under Article 346 of the old Code of Criminal Investigation, discretionary power to assess the appropriateness of reading the deposition of an absent witness. This power means he can decide alone, without having to refer to the Court, and without the Court being able to impose a contrary solution.

The High Court explained that the Cour d'assises, by ordering its President to exercise this power, had encroached on his prerogatives. It had disregarded the rules of its own jurisdiction. Indeed, the Cour d'assises is a collegiate body (several judges deliberate together), but certain acts are reserved to its President, such as the conduct of proceedings (Article 309 of the Code of Criminal Procedure). The order given by the Court is therefore void, as it exceeds what the law allows.

This is neither a development nor a reversal of precedent: the Court of Cassation confirms a rule constant since the 19th century. The accused's arguments (violation of the rights of the defence) are dismissed on the merits, but the procedural ground (lack of jurisdiction of the Court) is upheld. The decision is important because it reminds that respect for forms is as essential as the substance of the law.

What this changes for you — concretely

This decision has practical consequences for all actors in a criminal trial:

• For the accused: you can challenge any decision of the Cour d'assises that orders the President to do or not do an act within his discretionary power. For example, if the Court imposes the reading of a deposition that the President refuses, the judgment can be quashed. This is a protection against arbitrary decisions of the majority.
• For the civil party (victim): if you hope that a deposition will be read, you must convince the President, not the Court. Lobbying the jurors or judges composing the Court is useless, because only the President decides.
• For witnesses: know that your absence may lead to the reading of your deposition, but that depends solely on the President. If you are summoned in Valognes and cannot come, inform the President so that he can assess your excuse.

Concrete example: in a rape case in Carentan, the President refuses to read the deposition of an absent witness. The Court orders him to do so. The accused is sentenced to 10 years' imprisonment. Thanks to this precedent, the lawyer obtains the quashing of the judgment and a new trial, which results in a 5-year sentence. Respect for discretionary power changed the accused's life.

Four tips to avoid this type of dispute

• Know the roles: if you are accused, ask your lawyer to check that the Cour d'assises is not encroaching on the President's powers. Any order given by the Court to the President is suspect.
• Challenge immediately: as soon as the Cour d'assises takes a deliberation to order a reading, your lawyer must object and request that this be recorded in the minutes. This will allow an appeal in cassation.
• Prepare arguments for the President: if you want a deposition to be read or not read, address the President alone, in writing or at the hearing, setting out your reasons.
• Verify the regularity of the composition: ensure that the President was not influenced by the Court. If the Court deliberated in the President's absence on this point, this may be a ground for nullity.

Further reading: related case law and developments

This decision is part of a consistent line: already in 1905, the Court of Cassation held that the President alone assesses the appropriateness of reading depositions (Crim. 17 March 1905). More recently, in 2016, the Court of Cassation reminded that the President may even refuse to read a deposition if it was obtained unfairly (Crim. 9 November 2016, No. 15-86.564).

The trend is therefore towards strengthening the President's powers, considered as the guarantor of the proper conduct of proceedings. However, some judges consider that this discretionary power should be regulated, particularly to avoid disparities between different Cour d'assises. For the future, it is possible that the law will specify the criteria that the President must take into account (e.g., the importance of the testimony, the possibility of adjourning the case, etc.).

In practice: what to do

Here is a checklist to react if the Cour d'assises orders the President to read a deposition:

1. Object immediately: your lawyer must say "I object to this deliberation, as it encroaches on the President's discretionary power."
2. Request recording in the minutes: the objection must be recorded in writing to be used in cassation.
3. Do not comply if you are the President: the President may refuse to execute the Court's order and continue the proceedings normally.
4. Appeal in cassation: if the reading took place despite the objection, the judgment can be quashed. The time limit is 5 clear days after the judgment is pronounced.

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