This paper focuses on the differing routines, techniques and performances of truth production in criminal trials based on ethnographic research in France and Germany in the context of our research project "Institutionalising Trafficking; A French-German Research Project". The question is, how do judges adjudicate which narrative on “what happened” to trust, and what techniques do they use in order to legitimise their perspective? This legitimatory work is essential, as judgment must be acceptable to an (expert or popular) audience, and in a criminal trial many central utterances are deeply contested.
The production of truth follows different rules in French and German Courts. Within the German Court, witnesses often have to reiterate what in theory has already been established by police and been in the police files. Here, relating the story in the court is what is judged on, and the court establishes the credibility of the witness in a process that appears ad hominem to the observer. In French Courts, on the other hand, police files often remain the main basis for truth finding. Thus, we find differing roles regarding oral testimony and the court’s appraisal of the integrity of the witness. While in German trials, the integrity of the victim-witness is thus always at issue, the victim-witness in the French cases rarely appears in person. This has effects on the understanding of what a victim is within the respective judicial systems.
In this paper, we shall delineate the schematics of these two Criminal trial systems, the main actors, their roles, the ritualised nature of their speech acts, their participation in finding, declaring or searching out the different narratives of the “truth of the matter” at issue, and differentiate between law in the books and law in practice. The two justice systems – both based on civil law, both called inquisitorial – differ markedly with regards to the mechanisms of establishing truths (or plausibilities). So our aim here is to look at “doing the state” as a set of activities, as superficially always and necessarily particular, local and ephemeral (Smith 2001), and yet when we talk of “the state” we refer to something transcending the local and agent-specific. Observing trials is a way of showing the transcendental in the merely ephemeral, and of understanding what "the state" establishes as Truth.
