Hearing of witnesses during a criminal investigation
Verified 22 December 2021 - Directorate of Legal and Administrative Information (Prime Minister), Ministry of Justice
In the course of a criminal investigation, any person who can give information on the facts concerned or on the personality of the suspect may be heard as a witness. The procedure depends on the type of investigation. Sometimes the witness can testify anonymously.
Anyone who investigators believe has information about a case can be heard as a witness. She must not be a victim or a suspect in this case.
The witness may not have witnessed the offense. For example, it could be a person who can give information about the personality of the suspect.
The defendant and the victim may indicate witnesses to be interviewed in search of the truth. The decision to hear the witness rests with the investigation department.
a minor can be a witness. The validity of his statements is reviewed by the judge.
The procedure depends on the type of investigation being conducted.
Investigation for flagrante delicto
An investigation for flagrante delicto (or flagrancy investigation) is opened immediately after a crime or a offense coming or being committed. It is led by the public prosecutor.
The police or gendarmerie may prohibit any person present at the scene of the offense from leaving. The witness may be questioned on the spot in order to provide information on the facts and possibly be heard again at a later date.
The witness summoned to the police station or gendarmerie must obligatory introduce themselves. The summons can take different forms (telephone, mail...). If he does not attend the summons received, the law enforcement authorities can go after him with the prosecutor's prior authorization.
If the needs of the investigation warrant it, for example to avoid pressure on the witness, this person may be obliged to stay the time strictly necessary for his hearing. This period shall not exceed 4 hours.
The policeman or gendarme writes a statement. The witness is rereading it himself. He may record his observations and sign it. If the witness refuses to sign, the minutes shall state that fact. If the witness states that he cannot read, the police officer or gendarme reads him the minutes of his statements.
The witness is scheduled to appear, but he is not required to make any statements. Nor is he obliged to take an oath, that is to say, to solemnly declare that he will tell the truth.
The witness is not entitled to legal assistance.
The preliminary inquiry is an investigation led by the public prosecutor or automatically by judicial police officers who report to the public prosecutor. For example, it may be as a result of a complaint filed by the victim. It's not part of the flagrant offense.
The police or gendarmerie may summon a witness in connection with the case. The witness summoned to the police station or gendarmerie must obligatory introduce themselves. If he does not attend the summons, the police or gendarmes can go after him with the authorization of the prosecutor. The summons can be made in different forms (telephone, mail...)
If the needs of the investigation warrant it (for example to avoid pressure on the witness), this person may be obliged to stay for the time strictly necessary for his hearing. This period shall not exceed 4 hours.
The witness is scheduled to appear, but he is not required to make any statements. He does not have to take an oath. The witness is not entitled to legal assistance.
If there are reasonable grounds to suspect that the witness has committed or attempted to commit serious acts, the witness shall be heard in the context of a open hearing.
The policeman or gendarme writes a statement. The witness shall read it again himself, may have his observations recorded and shall sign it. If the witness refuses to sign, the minutes shall state that fact. If the witness states that he cannot read, the police officer or gendarme reads him the minutes of his statements.
If an investigation has been opened, a witness who witnessed the incident may also write and hand over written testimony of himself to the police or gendarmerie. He can complete the witness attestation form or do it on free paper. He hands it over to the police or gendarmes in charge of the case. This written testimony must be accompanied by a photocopy of the witness's identification.
A template is available:
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In this case, the witness may be summoned later.
This is a survey directed by a examining magistrate. It can take place after a preliminary investigation, on the same facts. A witness may be heard at different stages of the proceedings (for example at the time of the police investigation and then at the time of the investigation).
The witness shall be heard at the request of the investigating judge or if he or she comes forward spontaneously.
Witnesses who do not appear spontaneously shall be summoned by post or city to appear before a commissioner of justice (formerly bailiff and judicial auctioneer), a police officer or a gendarme.
The witness summoned or summoned is obliged to testify. The police or gendarmerie can force him to come if he doesn't show up.
The witness may be heard by the examining magistrate himself, assisted by his registrar. If the witness cannot come, the judge can move around or have him heard by police and gendarmes investigating in the context of a letters rogatory. The witness may be detained on their premises only for the time required for his hearing.
In all cases, the witness must take an oath and say The truth, the whole truth. Only minors under 16 years of age are exempt from taking the oath.
The witness has no right to remain silent and must answer the questions asked.
The witness is not entitled to legal assistance. He may be assisted by an interpreter. For minors, legal representatives must be informed.
The investigating judge cannot hear a person indictment as a mere witness, without the assistance of counsel, for acts committed in connection with the offense.
If there is serious evidence against a witness, he may not be heard as a mere witness, but he must be heard as assisted witness.
Minutes of the statements shall be drawn up. The witness is invited to reread his statement, before signing it. If the witness is unwilling or unable to sign, the minutes state that.
if a witness takes an oath during an inquiry, false testimony is considered to be offense. He can be punished with up to 5 years in prison and €75,000 of fine.
Failure to give evidence or take an oath may be punished by a fine of €3,750.
If the witness has a legitimate reason for not coming to testify, he must notify the judge in charge of the investigation and present him with all the supporting documents (medical certificate...).
The person subject to professional secrecy may refuse to testify. This secrecy may be waived in certain cases, for example, when a doctor or lawyer testifies that a minor has been physically harmed, of which he or she is aware.
The judicial police services and the courts of the place of the offense shall have jurisdiction to investigate, prosecute, investigate and try an offense.
Upon authorization of the judge in charge of the case, a witness may declare the address of the police station or gendarmerie brigade as his residence.
If the witness has been summoned because of his profession, he may declare his professional address. For example, a police officer who testifies declares the address of the police station where he is performing his duties.
In the case of a crime or offense punishable by at least 3 years in prison, the witness may be allowed to testify without his name appearing in the proceedings. His testimony must be capable of endangering his life, the life of his family or loved ones. It is the judge of liberty and detention who can authorize it.
In certain circumstances (for example, if the witness's security is no longer assured), the witness may be authorized to use an alias. If he is confronted with the suspect, this confrontation will take place at a distance. The witness will not be visible and his voice will be obscured. Revelation of identity or address is punishable by 5 years in prison and €75,000 of fine.
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