If you thought the legal intricacies of the O.J. Simpson case were hard to follow, just wait till you see the Dodi and Di case.
A mind-boggling array of potential litigants–plus a legal system that makes sense only to the French–soon will try to assess blame for the Paris car crash that killed Princess Diana and her jet-set boyfriend Dodi Fayed last month.
Possible plaintiffs in criminal and civil actions include the injured bodyguard and sole survivor, Trevor Rees-Jones; Mohamed Fayed, Dodi’s billionaire father; Diana’s family, including heirs to the British throne; the parents of the dead driver, Henri Paul–and, of course, the Republic of France.
Possible defendants include the paparazzi who chased the Mercedes-Benz sedan in which the four were speeding; the photo agencies that buy and sell their celebrity pictures; the Ritz Hotel, owned by the elder Fayed, which employed Henri Paul; the estate of the driver; the makers of the Mercedes–and perhaps the Republic of France.
“No doubt there will be spinoffs in all directions, both civil and criminal,” predicted Patrick Healy, a law professor at McGill University in Montreal.
Because French law–most of it based on the Napoleonic Code of 1804–differs from the Anglo-American system in several crucial respects, U.S. audiences may need interpreters to follow the action.
One key difference is that there are no American-style juries in France; most cases are heard by judges. Nor is there much separation between the civil and criminal systems.
In contrast to the Simpson epic, with its two separate jury trials, the judge conducting a French trial may award civil damages along with criminal penalties. As a result, some of the potential civil plaintiffs are taking part in the criminal investigation, as when the elder Fayed requested further blood tests in hope of proving the dead driver was not drunk. (Those tests confirmed the blood-alcohol level was three times over the legal limit.)
Right now, the proceedings are in the hands of two investigating magistrates, Judge Herve Stephan and Judge Marie-Christine Devidal. They will decide over the next few months whether anyone should be indicted.
Their current targets are nine photographers and a motorcycle courier who were at the crash scene in the tunnel at the Pont de l’Alma, but the investigation could well produce additional criminal defendants.
Mohamed Fayed and relatives of Henri Paul and Diana (but not her sons, Princes William and Harry) reportedly have been named civil parties to the proceedings against the paparazzi, which will allow those parties to collect damages if anyone is convicted (and has any money). Rees-Jones, 29, who still is in intensive care reportedly suffering from amnesia, also could join.
The charges
The potential criminal charges against the paparazzi include involuntary homicide (manslaughter) and failure to provide assistance to the crash victims, a violation of France’s “Good Samaritan” law.
Of these, non-assistance, which carries a maximum penalty of 5 years in jail and 500,000 francs (about $83,000), is the more likely. It would be harder to prove that the paparazzi caused the crash if the driver was drunk.
In theory, criminal charges also could be brought against the agencies that employed the photographers if the agencies knew of or encouraged the behavior that led to the crash, said George Bermann, professor of comparative law at Columbia University. The Ritz Hotel also might be vulnerable, he said, because Paul worked for the hotel as deputy chief of security.
It’s more likely the photo agencies and the Ritz would face civil lawsuits rather than criminal charges. Bermann admitted it would be “a stretch” to claim the agencies were accomplices to homicide. Further, unless it could be shown that the hotel knew Paul was drunk, it would be “very hard to prove” that sending him out was criminally negligent.
Some civil lawsuits might be brought independently of criminal charges, and even when someone is acquitted of the criminal charges. The Ritz, which reportedly rented the Mercedes, could be sued under France’s motor vehicle accident law by the injured bodyguard, Rees-Jones, or by relatives of Diana or Paul. The 1985 accident law says the “guardian” of any motor vehicle that causes injury is responsible even if he is not at fault.
In addition, because the accident occurred in the course of Paul’s official duties, the Ritz could be held liable for any damage he caused.
The accident victims or their survivors also could bring a product-liability lawsuit against the manufacturer of the Mercedes, but that would entail proving the car was defective. And, on a “purely theoretical” level, the French government could be sued for poor design or maintenance of the road, Bermann said.
For their part, the paparazzi could face civil lawsuits for invasion of privacy, which carries strong protections in France. Such celebrities as Marlene Dietrich and Brigitte Bardot sued successfully over the dissemination of unauthorized photos and memoirs. In another case, the family of former French President Francois Mitterrand recently won $15,000 from the magazine Paris Match for running a picture of Mitterrand on his deathbed.
According to Eric Allain, a Paris associate of Chicago attorney Lynne Ostfeld, merely taking a photograph of something intimate could be a violation, even if the photo never was published.
Sharing the blame
French law does not recognize contributory negligence, which would let a defendant off the hook if the plaintiff were shown to be at fault. The underlying doctrine in France is one of comparative negligence, or shared fault.
“One party’s liability doesn’t necessarily exonerate the other,” Bermann said.
That means the paparazzi could be found guilty of helping cause the accident even if the driver’s intoxication and speeding were found to be the principle causes. (Investigators have estimated Paul was going at least 90 miles an hour–three times the legal limit.)
On the civil side, Bermann said, whatever damages a plaintiff is entitled to could be reduced if he or a third party shared the blame. So, for example, if Paul’s family sued the paparazzi for causing his death, the amount they were awarded could be reduced in proportion to the driver’s own fault.
Likewise, if Diana’s survivors sued, their damages could be reduced by her failure to wear a seat belt.
The trial
If the crash results in a criminal prosecution, it will look a lot different from what we see on Court TV. For one thing, it won’t be on TV. Nor will flamboyant attorneys conduct histrionic cross-examination of witnesses.
The Dodi and Di case most likely will be tried by a three-judge bench and no jury. Only in the most serious French crimes is a trial conducted by a 12-member panel of four judges and eight jurors.
Unlike the American adversarial system (think Marcia Clark and Johnnie Cochran), the French use an inquisitorial system, in which the judges call the witnesses and do almost all the questioning.
Although there is no cross-examination, the lawyers get a chance to ask questions afterward, but asking more than a few is considered bad form. It suggests the judges weren’t thorough.
French trials rarely last more than a few days, partly because arguments over the admissibility of evidence are infrequent. Hearsay evidence is allowed, as is evidence of previous crimes.
“The French have the idea that you judge the person, not just the act,” said Richard Frase, a law professor at the University of Minnesota.
The French also have substantially more faith in the possibility of rehabilitation than do Americans. Jail terms in France are relatively light and relatively infrequent.
Allain and Ostfeld said the maximum penalty for involuntary homicide is 3 years and 300,000 francs (about $50,000). That increases to 5 years and 500,000 francs (about $83,000) with aggravating circumstances, such as speeding, and is doubled in the case of a drunken driver.
So Paul, had he survived the crash and been found guilty of causing it, could have been sentenced to up to 10 years in jail and fined about $166,000.
Another big difference, Ostfeld and others pointed out, is the burden of proof.
In American courts, a defendant must be found guilty by “a preponderance of the evidence” in civil cases and “beyond a reasonable doubt”–a much higher standard–in criminal trials. (That’s essentially why Simpson was acquitted of murdering Nicole Simpson and Ron Goldman but found responsible for the deaths in the later civil suit brought by the victims’ parents.)
In France there’s only one standard of proof, said Isabelle Demenge, a French attorney with Baker & McKenzie in Chicago: the “intimate conviction” of the judges.
What does that mean?
“It means you need enough evidence to convince the judges,” she said.
Finally, there is the question of putting a price on the injury.
French damage awards tend to be paltry by American standards. There are no punitive damages; all awards are intended to compensate for actual harm, not to punish the wrongdoer. Also, damages are not left up to the arbitrary and subjective judgment of a jury; they are normally set by judges based on guidelines issued annually.
“The French like consistency and predictability,” said French lawyer Marie-Elise Baudon. “We want damages to be the same in Brittany as in Alsace, and we don’t want the skyrocketing awards you see in American trials.”
Nevertheless, Baudon conceded,
“In the case of the princess of Wales, they probably won’t use the guidelines. She was not an ordinary person–she was the mother of a future king.”
