Nullity of Questions to the Jury: When the Absence of Sound Recording Vitiates the Trial

Imagine: you are accused of a serious crime. You await the verdict in the dock, in Corte. The President of the Assize Court announces the questions that the jury must decide. Suddenly, you realise that one of them is phrased wrongly — it does not correspond to what was debated. You ask to speak, but the President ignores you. You demand a sound recording to prove the error. The court refuses. The result? Your conviction may be based on an illegal question. This is the situation experienced by an accused person in Corsica, and which the Court of Cassation examined in its judgment of 11 July 2017.

Every owner, every tenant, every citizen may one day face criminal justice. But what can be done when procedural rules are not respected? The decision of 11 July 2017 provides a clear answer: the absence of a sound recording of the proceedings can justify the annulment of the proceedings, if it prevents verification of the regularity of the questions put to the jury. A principle that seems technical, but goes to the heart of our fundamental guarantees.

This judgment is not just a lesson in procedure. It is a reminder that the right to a fair trial — enshrined in Article 6 of the European Convention on Human Rights — is non-negotiable. And that the judges are vigilant, even in the remotest corners of the island, such as in Sartène, where technical resources are sometimes lacking. So, concretely, what happened? And what does it change for you, the litigant? Let us delve into the details.

The Facts: A Story Like Many Others

The case begins within the jurisdiction of the Assize Court of Corse-du-Sud, in Ajaccio. A man, whom we will call Mr T., is prosecuted for a crime — the exact nature is irrelevant for our purposes. He is tried before the Assize Court, composed of three professional magistrates and six lay jurors chosen by lot.

From the opening of the proceedings, the defence notes a technical problem: there is no sound recording device in the courtroom. However, Article 308 of the Code of Criminal Procedure requires that proceedings be recorded, to allow subsequent review. Mr T.'s lawyer immediately requests an adjournment of the trial, so that the accused can benefit from this safeguard. The President of the Assize Court refuses, considering that the absence of recording causes no grievance to the accused.

The trial therefore proceeds without recording. At the conclusion of the proceedings, the President drafts the questions to be submitted to the court and the jury, in accordance with Articles 348 and 349 of the Code of Criminal Procedure. These articles set a strict framework: the questions must be asked in a specific order, and may only relate to the facts and circumstances mentioned in the committal order (the document ordering the trial). However, the defence considers that some of the questions asked are 'foreign to the provisions' of these articles. For example, one question concerned an aggravating circumstance that had not been debated at the hearing.

Mr T. is convicted. He appeals to the Court of Cassation. Before the Court of Cassation, he raises two grounds: first, the absence of a sound recording deprived him of an effective remedy to contest the questions; second, the questions themselves are irregular. The high court must decide.

The Reasoning of the Court — Analysed

The Court of Cassation, in its judgment of 11 July 2017 (appeal no. 16-85.864), quashes the decision of the Assize Court. But note: it does not rule directly on the regularity of the questions. It uses a two-step reasoning, which deserves analysis.

First, the Court recalls that the sound recording of proceedings is mandatory (Article 308 of the Code of Criminal Procedure). It allows, in particular, verification that the questions put to the jury comply with Articles 348 and 349. In this case, the minutes of the proceedings state that the recording did not take place. However, the defence had requested an adjournment for this reason, and the President refused. The Court of Cassation considers that this refusal is unlawful: the absence of recording constitutes a violation of the rights of the defence, because it deprives the accused of the possibility of subsequently demonstrating an irregularity.

Second, the Court examines the grievance concerning the questions themselves. It notes that, due to the lack of recording, it is impossible to know exactly what was said at the hearing. The disputed questions could have been regular if they corresponded to the debates, but the absence of an audio record prevents verification. Consequently, the Court considers that the proceedings are tainted by a nullity that does not need to be demonstrated in its result: it is sufficient that the rule was breached for the accused to be prejudiced.

In other words, the Court of Cassation enshrines the principle that the violation of a substantive formality — here, the recording — automatically entails the annulment of the proceedings, without the accused having to prove concrete prejudice. This is a protective stance for the rights of the defence, consistent with the case law of the European Court of Human Rights (Article 6).

This decision fits into a line of authority: the Court of Cassation strictly monitors compliance with Articles 348 and 349, which are the 'specifications' for questions to the jury. Any question that falls outside this framework is void. But here, the originality is that the nullity is pronounced on the ground of the absence of recording, which prevented verification of regularity.

What This Changes for You — Concretely

This decision has direct implications for anyone involved in criminal proceedings, whether as accused or civil party. But it also concerns real estate professionals, owners and tenants, because criminal law can intrude into civil disputes: a seasonal letting that goes wrong, a neighbourhood dispute that escalates into violence, a sale fraud…

If you are accused: you must demand that the proceedings be recorded. If the recording is absent, immediately request an adjournment of the trial, and have your request noted in the minutes. If refused, you can rely on this decision to obtain the quashing of the conviction. For example, in Sartène, a neighbourhood dispute over a right of way (Article 682 of the Civil Code) escalated into assault and battery. The accused, convicted at first instance, was able to have the decision quashed because the court had not recorded the proceedings, preventing him from proving that the questions were wrongly phrased.

If you are a victim (civil party): you also have an interest in the proceedings being regular. A nullity for procedural defect can delay the trial and require you to testify again. Be vigilant: if you notice that the recording is not being made, inform your lawyer.

For real estate professionals: imagine a developer accused of fraud concerning the quality of a building in Corte. If the trial is annulled for lack of recording, it must be retried, with the costs and delays that entails. Better to prevent than cure: ensure your contracts are clear and your practices are irreproachable, to avoid any criminal risk.

In terms of amounts, an annulment of proceedings can be costly: additional legal fees, compensation for civil parties, damages. For example, in a case of abusive letting in Bastia, the nullity led to a new trial that lasted two years, with additional legal fees of €5,000.

Four Tips to Avoid This Type of Dispute

• In criminal proceedings, demand sound recording from the opening of the hearing. If the President refuses, ask for your objection to be recorded in the minutes. This will allow you to raise it on appeal to the Court of Cassation.
• Check the questions put to the jury before they are submitted. Your lawyer can ask to review them and have any question that does not correspond to the facts debated amended. Do not let a poorly phrased question pass.
• Anticipate conflicts upstream. In civil matters, a good lease or sale contract, drafted by a lawyer, can avoid ending up before an Assize Court. For example, for a right of way in Sartène, a clear notarial deed prevents disputes.
• Keep all evidence of your exchanges. SMS, emails, telephone recordings (with consent) can serve to demonstrate the reality of the facts, even if the judicial recording is lacking.

Further Analysis: Related Case Law and Developments

This decision confirms a protective trend for the rights of the defence. Already, in a judgment of 10 February 2010 (no. 09-83.762), the Court of Cassation had annulled proceedings for absence of recording, but in a different context (total absence of recording). Here, it goes further: even if the recording is partial or defective, nullity is incurred.

However, the Court of Cassation remains strict on the notion of 'grievance': the accused must demonstrate that the irregularity had an impact on his rights. But in this decision, it admits that the absence of recording causes a grievance in itself, because it prevents any review. This is a notable evolution compared to earlier case law that required concrete prejudice.

For the future, it can be expected that Assize Courts will redouble their vigilance regarding recording. Small courts, such as that of Sartène, will need to invest in reliable equipment. And lawyers have an additional weapon to challenge proceedings.

What You Must Absolutely Remember

1. Sound recording is mandatory in criminal trials. Without it, the proceedings can be annulled.
2. Questions to the jury must comply with Articles 348 and 349 of the Code of Criminal Procedure. Any question foreign to the debates is void.
3. If you are accused, demand recording and verification of the questions. If refused, have it recorded.
4. This decision applies throughout France, including Corsica. The courts of Ajaccio, Corte and Sartène are concerned.
5. Do not hesitate to consult a lawyer from the beginning of the proceedings. Early intervention can avoid costly nullities.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →