In this paper we will refer to the holding of oral proceedings in the common or ordinary procedure established by our LPP (Book IV), since there are also special trials where the rules governing the aforementioned procedure are supplementary. The trial is reached, after the prosecution and defense have raised their respective positions (provisional qualifications), offering the means of evidence in their interests. Then the Court calls a trial or debate (the most natural way to resolve conflicts in criminal matters), before the same judges, publicly and continuously, using the word as a means of communication, whether a discussion or controversy occurs, within a framework formalized and guaranteed by transparency, in search of historical truth, and whose genuine product is the sentence.There is no criminal prosecution system known throughout history, which can be considered as a perfect way to solve conflicts of this nature, they all have advantages and disadvantages; But the opinion is dominant that a system with a predominance of orality (normal way of communication between human beings) and advertising, such as the one we are examining, has more advantages than disadvantages, compared to systems characterized by writing and secrecy. Cuba, in relation to the countries of the Latin American region, has the privilege of having a centuries-old experience of a criminal prosecution system with a predominance of orality in the decision or oral trial phase.
Introduction
The trial is the decisive or main phase of the criminal process, which aims to establish whether it can be proven with certainty, based on the evidence received in it orally and publicly, that the accused is criminally responsible for the crime attributed to him, what which will determine a conviction, or if such a degree of conviction is not reached, an acquittal.
The Oral Trial is of great importance because it constitutes the culminating moment of the criminal process, its fundamental or stellar phase. The previous stages (instruction or preparatory phase, and intermediate phase) revolve around the idea of preparation and organization.
II.- Historical antecedent.
The oral trial appears in our legal model on 1 / I / 1889, the date on which the Spanish Criminal Procedure Law of 14 / IX / 1882 came into force in Cuba. In most of the countries of this region, until the current decade, a model of prosecution by records has prevailed, where the characters of writing and secrecy prevail. Today, the aforementioned -written- system is gradually being replaced by another where orality is prevalent in the solution of criminal disputes.
III.- Essential principles that govern the holding of the Oral Trial.
- Publicity of the debates: As a rule the debates are public, anyone has the possibility to witness their total development. The law establishes exceptions (Article 305), these are: »reasons of state security, morality, public order or the respect due to the person offended by the crime or to their relatives.
The Court's decision to hold the trial behind closed doors can be adopted before the trial begins (an order will be issued stating the reasons) or in the course of the sessions (it will be recorded in the minutes here), and can be agreed ex officio or at the request of a party. The trial can also be partially carried out behind closed doors, that is, only the part that is interested in advising the circumstances. Eg: The statement of a witness will refer to the moral of the victim or perpetrator; then only this testimony is received behind closed doors.
Publicizing the debates allows popular control over the administration of justice, and contributes to ensuring society's confidence in it. It also fulfills an educational function.
- Immediation: This principle is constituted by the personal, direct and uninterrupted relationship of the Court, the Accusation and defense with the accused and the organs and sources of evidence.
Example: The Court listens directly to witnesses and experts without intermediaries, inspects the scene of the events.
- Concentration or continuity: The trial is a single act that requires the greatest possible temporal approximation between its beginning and the discussion of the sentence, so that it is built on the basis of the memory that is in the memory of the judges of what happened in its different moments. The trial proceeds without interruption. The law establishes (Art. 346) a list of causes that authorize the suspension of the oral trial for a "not too long" time once it has been initiated (this phrase is ambiguous and must be specified in a future law). Orality: All procedural activity in the trial (acts of initiation, production of evidence, instances, reports, decisions of mere procedure) it is developed verbally. The word is the means of communication between the parties and the Court. This principle allows or facilitates advertising,immediacy and concentration. Simple and understandable language should be used by all present. Contradiction: It is based on the full equality of the parties. It corresponds to the Accusation the demonstration of the truth of its imputation and the destruction, in its case, of the state of innocence. She must demonstrate by producing the evidence that she proposed the facts that are the subject of the process. The Defense on behalf of the accused will propose defense evidence, and will seek for him the most favorable solution of the criminal case, within the framework of the law. Both have the power to control the entry into the trial of the respective classes of evidence and the possibility of arguing about their conviction effectiveness. The contradiction, as a rule, has its maximum expression in the final oral arguments (reports).The parties must litigate with loyalty, observing irreproachable ethical behavior in the debate. Physical identity of the Judge: This principle consists in that the Court of the trial will be made up of the same judges, from the beginning until the sentence is drawn up. Only the Judge who witnessed the debate (acts of initiation, statement by the accused, production of evidence, final qualification, final reports and last word of the accused) is entitled to intervene in the solution of the criminal case by issuing a sentence. On the other hand, it is not mandatory that the person of the prosecutor or the defender be the same throughout the trial, however its replacement is not advisable due to the inconveniences it brings, both for the accusatory and defensive activity, and will only be done in exceptional cases. cases (art. 346.4 b) and c))4 b) and c))4 b) and c))observing in the debate an irreproachable ethical behavior. Physical identity of the Judge: This principle consists in that the Court of the trial will be composed of the same judges, from its beginning until the elaboration of the sentence. Only the Judge who witnessed the debate (acts of initiation, statement by the accused, production of evidence, final qualification, final reports and last word of the accused) is entitled to intervene in the solution of the criminal case by issuing a sentence. On the other hand, it is not mandatory that the person of the prosecutor or the defender be the same throughout the trial, however its replacement is not advisable due to the inconveniences it brings, both for the accusatory and defensive activity, and will only be done in exceptional cases. cases (art. 346.4 b) and c))observing in the debate an irreproachable ethical behavior. Physical identity of the Judge: This principle consists in that the Court of the trial will be composed of the same judges, from its beginning until the elaboration of the sentence. Only the Judge who witnessed the debate (acts of initiation, statement by the accused, production of evidence, final qualification, final reports and last word of the accused) is entitled to intervene in the solution of the criminal case by issuing a sentence. On the other hand, it is not mandatory that the person of the prosecutor or the defender be the same throughout the trial, however its replacement is not advisable due to the inconveniences it brings, both for the accusatory and defensive activity, and will only be done in exceptional cases. cases (art. 346.4 b) and c))Physical identity of the Judge: This principle consists in that the Court of the trial will be composed of the same judges, from its beginning until the preparation of the sentence. Only the Judge who witnessed the debate (acts of initiation, statement by the accused, production of evidence, final qualification, final reports and last word of the accused) is entitled to intervene in the solution of the criminal case by issuing a sentence. On the other hand, it is not mandatory that the person of the prosecutor or the defender be the same throughout the trial, however its replacement is not advisable due to the inconveniences it brings, both for the accusatory and defensive activity, and will only be done in exceptional cases. cases (art. 346.4 b) and c))Physical identity of the Judge: This principle consists in that the Court of the trial will be made up of the same judges, from its beginning until the preparation of the sentence. Only the Judge who witnessed the debate (acts of initiation, statement by the accused, production of evidence, final qualification, final reports and last word of the accused) is entitled to intervene in the solution of the criminal case by issuing a sentence. On the other hand, it is not mandatory that the person of the prosecutor or the defender be the same throughout the trial, however its replacement is not advisable due to the inconveniences it brings, both for the accusatory and defensive activity, and will only be done in exceptional cases. cases (art. 346.4 b) and c))in which the Court of the trial will be composed of the same judges, from its beginning until the preparation of the sentence. Only the Judge who witnessed the debate (acts of initiation, statement by the accused, production of evidence, final qualification, final reports and last word of the accused) is entitled to intervene in the solution of the criminal case by issuing a sentence. On the other hand, it is not mandatory that the person of the prosecutor or the defender be the same throughout the trial, however its replacement is not advisable due to the inconveniences it brings, both for the accusatory and defensive activity, and will only be done in exceptional cases. cases (art. 346.4 b) and c))in which the Court of the trial will be composed of the same judges, from its beginning until the preparation of the sentence. Only the Judge who witnessed the debate (acts of initiation, statement by the accused, production of evidence, final qualification, final reports and last word of the accused) is entitled to intervene in the solution of the criminal case by issuing a sentence. On the other hand, it is not mandatory that the person of the prosecutor or the defender be the same throughout the trial, however its replacement is not advisable due to the inconveniences it brings, both for the accusatory and defensive activity, and will only be done in exceptional cases. cases (art. 346.4 b) and c))production of evidence, final qualification, final reports and the last word of the accused) is entitled to intervene in the solution of the criminal case by issuing a sentence. On the other hand, it is not mandatory that the person of the prosecutor or the defender be the same throughout the trial, however its replacement is not advisable due to the inconveniences it brings, both for the accusatory and defensive activity, and will only be done in exceptional cases. cases (art. 346.4 b) and c))production of evidence, final qualification, final reports and last word of the defendant) is entitled to intervene in the solution of the criminal case by issuing a sentence. On the other hand, it is not mandatory that the person of the prosecutor or the defender be the same throughout the trial, however its replacement is not advisable due to the inconveniences it brings, both for the accusatory and defensive activity, and will only be done in exceptional cases. cases (art. 346.4 b) and c))both for accusatory and defensive activity, and it will only be done in exceptional cases (art. 346.4 b) and c))both for accusatory and defensive activity, and it will only be done in exceptional cases (art. 346.4 b) and c))
Below we offer several examples of violation of the stated principles:
- Publicity of the debates: The Court, without support in the causes established by law, decides to hold the trial behind closed doors; or unjustifiably limits public access to the courtroom; or for no legitimate reason, prevents certain people from witnessing the trial, due to their appearance or appearance. Immediation: The Court, without any really impeding reasons (such as the death or leaving the country of the witness), substitutes the appearance of witnesses or experts in trial by reading the documents containing the testimonies or reports, respectively.Concentration or continuity: Between the beginning of the trial session and its completion, there is an extensive period (three months, for example), motivated by successive suspensions before the repeated non-appearance of the alleged victim.At the moment of agreeing the sentence, it is practically impossible for the elements of conviction and arguments to be registered in the memory of the judges who attended the debate with the freshness and fidelity necessary, which allow their discussion without the need to go to the minutes (file preparatory phase and record of the oral trial). Orality: When the documentary evidence corresponds, the president authorizes the entry of documents to the trial without their public reading, pronouncing the famous phrase: «The documents proposed and admitted are considered reproduced »(The principle of publicity is also violated here, as it prevents the present public from knowing the content of documents that can serve as the basis for the sentence). Contradiction:When the documentary evidence is duly proposed and admitted, the only one whose performance is possible, as a rule, the Court admits the surprise presentation of documents by one of the parties, which could weaken the opposing thesis, and which due to the occasion unjustified in that they are incorporated into the trial, their contradiction by the other is impossible.Physical identity of the Judge: After the trial begins, it is suspended for its continuation, and when the day to continue it, a Judge who did not intervene in the initial session. Also when a judge who did not witness the debate is part of the sentencing court.and that due to the unjustified occasion in which they are incorporated into the trial, their contradiction by the other is impossible.Physical identity of the Judge: After the trial has started, it is suspended for its continuation, and when the day to continue it, a Judge integrates the Court who did not intervene in the initial session. Also when a judge who did not witness the debate is part of the sentencing court.and that due to the unjustified occasion in which they are incorporated into the trial, their contradiction by the other is impossible.Physical identity of the Judge: After the trial has started, it is suspended for its continuation, and when the day to continue it, a Judge integrates the Court who did not intervene in the initial session. Also when a judge who did not witness the debate is part of the sentencing court.
IV.- Structure and basis of the Oral Trial.
The trial is structured as follows:
- First: Acts of initiation, which includes, among others, the moment to establish the challenge, where appropriate, the account of the fact that is the subject of the process and the reading of the qualifying documents. Second: Declaration of the accused, if he does so Third: Receipt of the evidence timely offered by the parties and admitted by the Court, as well as the ex officio (documentary, witness, expert, inspection of the place of the event, etc.). Those whose proposal by the parties is made during the trial will also be practiced, in the exceptional cases that the law provides (confrontation of witnesses with each other or with the accused, or between them, if they lend themselves to it, and the evidence to prove any circumstance that may influence the probative value of the statement of a witness Art.340) Fourth: Time of final qualifications (use of the formula of article 350 by the Court, if applicable) and oral arguments (reports) Fifth: The defendant's right to last word Sixth: Discussion and vote on the sentence and preparation of the sentencing document.
The basis of the oral trial is the accusation; that is, the punitive claim and compensation when appropriate. The prosecution determines the sphere of knowledge and investigation by the Court.
V.- Powers of the President of the Trial Court. Crime committed in the course of the hearing.
The President of the Oral Trial Court has the power to direct during its celebration (directive power). The law also attributes the power to maintain discipline and order in the development of the sessions of the aforementioned act (disciplinary power).
Management faculty: It is the responsibility of the president to direct the debates. In the performance of this function, it must prevent impertinent discussions that do not lead to the clarification of the truth, taking care not to limit the parties in the exercise of their rights and legal powers (Art. 307).
Examples of the aforementioned attribution:
- Authorize which people (in addition to those required to intervene) can witness the oral trial when it is held behind closed doors (Art. 305). Declare the trial session open and instruct the parties of the right that assist them to challenge any of the members of the Court (Art. 309). Alter the order of the taking of evidence as it is considered convenient for the better clarification of the facts (Art. 311). Instruct the accused of the right that assists him to make a statement or not to do so (Art. 312). Arrange for the reading of documentary evidence (Art. 338). Instruct the witness of the obligations imposed by law (Art. 320). Interrupt the witness while he testifies in order to prosecute the debate (Art. 321). Do not allow the witness to answer leading, suggestive or impertinent questions or cross-examinations (Art. 322).Instruct the experts of their obligations (Art. 210 and 337). Ask the Prosecution and Defense about their final conclusions (Art. 349). Give the floor to the parties to orally render their reports (Art. 353).When There are several defenders, decide the order in which they will report (Art. 353). Guarantee the right of last word of the accused (Art. 355). Declare the trial concluded for sentence (Art. 353).
Disciplinary power: The president has all the powers to preserve or establish order in the sessions and to maintain due respect (Art. 306).
Those attending the trial are subject to the disciplinary jurisdiction of the president, who will impose the corrections without prior formalities or procedures at the time of incurring the offense (Art. 97 and 100).
They may be corrected directly by the president: The auxiliary personnel of the Court that intervenes in the trial, the accused and defenders, the witnesses, experts, as well as the persons attending the hearing. The faults committed by the prosecutors and instructors may not be corrected directly by the president, he will inform the respective hierarchical superiors for the appropriate purposes (Art. 102).
The law establishes a list of the offenses that give rise to the imposition of disciplinary corrections; it also expresses what these corrections consist of and to whom they can be imposed; as well as the resource to be used by the corrected (Art. 95, 96, 98 and 100).
Examples of the exercise of disciplinary authority:
- After the trial began, the defendant disturbed the order in the courtroom with inappropriate conduct (uttering profanity and vexatious phrases to the Prosecutor). Given the aforementioned behavior, the President warns him that if he maintains that attitude, he will be expelled from the room. The accused insists on his inappropriate conduct, which led the President to order his expulsion for the rest of the sessions (Art. 307). Several attendees of the trial converse uninterruptedly and loudly during its celebration, the President, who had already required for this reason, gives the order of expulsion from the courtroom. The Prosecutor when questioning a witness is seriously altered against him, since his responses are not those expected by said official, who continued his questioning offending him. The President, after ordering the cessation of offenses,decided to withdraw the floor from the Prosecutor, ending the questioning of that witness and ordered to inform his superiors of said event for the appropriate disciplinary purposes. The Defender in his report refers to the work of the institutions in charge of prosecuting public crimes. The President, in this exceptional case of serious offense, interrupts the report, admonishes the Defender, and tells him to continue his argument, adhering to what is pertinent and observing due respect for the invoked institutions.to the work of the institutions in charge of prosecuting public crimes. The President, in this exceptional case of serious offense, interrupts the report, admonishes the Defender, and tells him to continue his argument, adhering to what is pertinent and observing due respect for the invoked institutions.to the work of the institutions in charge of prosecuting public crimes. The President, in this exceptional case of serious offense, interrupts the report, admonishes the Defender, and tells him to continue his argument, adhering to what is pertinent and observing due respect for the invoked institutions.
When the offenses incurred by the experts and witnesses, the parties or their representatives, as well as the persons attending the hearing, have the character of a crime, the President may order that their perpetrators be arrested and placed at the disposal of the competent authority. In this case, the members of the Court are considered eyewitnesses, or may even be harmed by the specific fact in question (Art. 99).
In carrying out the aforementioned attributions, the President must jealously take care of his condition as director of the debate, not committed to the positions of the contestants, demanding both from the members of the Tribunal and from them the attention and due respect, so that they do not there is the slightest doubt about his impartial performance, as it is evident.
VI.- Development of the Oral Trial: Formalities and initiation acts.
Formalities.
It is clear that the dignity of justice is a matter of substance and not of form, but the ideal is that both aspects correspond.
The legal system (Law of Courts and its Regulations, as well as the LPP) dedicates very few precepts in relation to the formalities that must be observed for the holding of the oral trial. The Regulation of the Law of the Popular Courts, in its article 60 states: «In all cases, the hearings must be held with the solemnity established by the procedural laws and with the minimum material conditions for the proper performance of the Court's functions. and of the people involved in the act. For the purposes of compliance with the foregoing, the conditions of the premises, the placement of the shield and the national flag, a platform for the Court and the parties, and seats for the public and guests, if applicable, must be considered, among others. ". This article and the 63, which refers to the use of the toga,They are the only ones on judicial organization that are related to the formalities or solemnity of the judicial acts. The dictionary teaches us how solemn the act is accompanied by important formalities; that solemnity highlights the importance of the act.
The courtrooms should have a blackboard and a model for when necessary. Eg: Offer better illustration in road traffic crimes.
The scarcity of legal or regulatory norms on the formalities for holding the oral trial means that it is the practice of the Courts that establishes them; This practice is changing and sometimes differs between the different Courts and even between the different chambers or sections of the same Court.
Initiation acts.
On the day of the appointment, if the President, after being informed by the bailiff, considers that the necessary conditions exist to start the oral trial sessions, he will order the latter to carry out the usual preparatory acts.
As soon as the bailiff informs the President that the parties and the Secretary already occupy their respective positions, that the pieces of evidence have been placed in the Chamber, that the accused has been duly located and that the appropriate measures have been taken for the isolation of witnesses and experts, the members of the Tribunal, led by the President, enter the Chamber and take their seats on the podium. The bailiff remains in front of the Court awaiting orders from the President.
Regarding the location of the intervening subjects in the courtroom, there are no legal regulations in this regard, but in our country the Spanish tradition has been followed where the Court is placed in an eminent place on the podium and the secretary will have his table in front of it. To the right of the Court and at the height of this, the Prosecutor (if the Chief of the Prosecutor's Office) will take a seat, and to his left the Defender of the accused parties, reversing the positions when the one acting is not the Chief Prosecutor but one of the their subordinates, whatever their category (currently the indicated location is not uniform in the country. Example: Provincial Courts of CH and SS). The accused or accused will have their position in the lower part of the podium on the side on which the Defender is placed,in a bank that is usually referred to in practice as the "defendant's bench."
The President, considering that all the conditions for the start of the session are met, will order the bailiff to announce the trial, which he carries out by standing outside the courtroom and shouting: «Public hearing, the oral trial will begin. of Cause number _______ of the year ______ of the filing of this Court, followed by the crime of ___________, and in which _____________ appears as accused / s ”. He then invites the public to go inside the room.
The President carefully observes the entrance of the public, which must be done with the greatest order and everyone keeping silence. To achieve this in the most complete way, the President, if necessary, makes requests and preventions, and has the constant cooperation of the bailiff.
Immediately afterwards, the President declares the session open and instructs the parties of the right that assist them to appeal to any of the members of the Court, then he addresses the secretary, and says: "secretary, on account." The secretary then explains in a very laconic way the fact that led to the formation of the case, the names of the accused or the accused and whether they are subject to precautionary measures. Next, the President asks the parties if they are interested in having the qualification briefs and the list of the evidence presented and admitted read; reading which may be dispensed with with the agreement of the same.
VII.- Declaration of the accused.
At the end of the reading of the qualifying briefs, if applicable, the President orders the accused to stand before the Court and asks him if he wishes to testify, noting previously that he has the right to do so or not. The accused may adopt any of the following positions:
a) Stating that you do not want to testify by keeping silent. This position cannot harm you at all. Nothing can be deduced against him from silence.
b) Stating that you only wish to answer the questions asked by the Prosecution, the Defense and the Court (note that the LPP does not expressly authorize the questioning by the Court), or limit yourself to answering any of these subjects (only their Defender, for example), or narrow the answers to the questions he wants. The President will not allow the accused to answer leading, suggestive, or impertinent questions.
c) State that you want to testify freely, but do not answer questions.
d) State that you want to make a statement and answer the questions asked.
It would constitute an illegal and harmful practice to subject the accused to the interrogation of the parties, without first having been invited and allowed to make a free statement, without having to adjust to questions. The statement of the accused is part of the realization of the constitutional right of defense (material defense. It is also considered a means of proof), and may only be interrupted by the President when he departs (substantially) from the object of the process (alleged fact). The presence of the accused during the entire trial session or sessions is mandatory; the absence is only allowed when ordering his expulsion by the President (art. 307).
Second Part VIII- Practice of evidence in the Oral Trial: Generalities.
In our prosecution model, the principle of probation generally governs (everything can be proven and by any means). As for the means of proof, this means that the use of a specific means to prove a specific object is not required (as a rule) (although the one that offers the best guarantees of effectiveness should be used). There are exceptions to the aforementioned principle. Examples: accreditation of civil status and criminal records.
In the trial, no evidence other than those proposed (at the time of provisional qualification) and admitted by the court, because they are pertinent (relevance is, the relationship between the fact or circumstance that you want to prove, with the element of test that is intended to be used for this). The Accusation, the accused and his Defender previously know the means of proof that will be used in merit of the respective interests. By way of exception, the law authorizes the proposition of evidence during the trial (here the evidentiary need arises in the course of the sessions. Example: the evidence to prove any circumstance that may influence the probative value of the statement of a witness. Art. 340.3). The Court, ex officio,It is authorized to propose the tests it deems necessary to verify any of the facts that have been the subject of the qualification documents (art. 340.2).
When the law establishes an order for the taking of evidence (statement of the accused, documentaries, examination of witnesses, expert report, and inspection of the scene of the events), it does not mean that these are the only ones whose practice is possible in the trial It only does so by way of illustration. Other means of evidence may be carried out. Example: The recognition of the accused (Art. 152). If you opt for a means of evidence not provided for in the law, you must use the legally regulated procedure that is analogously more applicable, according to the nature and modality.
When the tests are carried out in the aforementioned order, it always begins with those proposed by the Accusation (since it is up to the accuser to demonstrate the truth of the alleged facts and the destruction of the state of innocence enjoyed by the accused), however, it may The President, ex officio or at the request of a party, when he deems it convenient for the better clarification of the facts or other circumstances advise, alter the indicated order (both in terms of the type of evidence, and within the evidence itself). Examples:
a) At the request of the Defense, the President is requested to authorize the practice of psychiatric expert evidence on the mental health of the victim (whether or not he was right at the time of the event or to testify at trial, art. 168.1), before receiving a statement to it, as it is convenient for the receipt of said testimony.
b) The Prosecution requests that the order in which the witnesses were proposed be altered and that the minor be examined first (the only witness and presumably impartial), which would be advisable for the better understanding of the other witnesses (suspects).
c) In the case of a crime of a continuing nature, the President ex officio, orders the witnesses who will report on each particular event, to make the receipt of evidence more understandable (it was proposed in such a way that the first witness would report the fourth event, the second of the first and the third would return on the fourth, for example).
As stated, in the trial the evidence opportunely proposed by the parties and admitted as pertinent will be practiced (as a rule), they may renounce, totally or partially, their practice, in which case the Court decides whether to adopt them and agree its practice or accepts the criterion of the proposer (article 341). Examples:
a) The Prosecutor proposed the examination of three witnesses who will testify on the same object (what it is specifically intended to prove in relation to the accusation), one of them is absent and said official resigns him, a criterion approved by the Court.
b) The Defender proposes the examination of the only presumably impartial witness and whose testimony supports his thesis that the accused acted in legitimate defense of his person, before the unjustified absence of the witness he resigns and requests that his summary statement (given in the preparatory phase). The Court does not approve the criterion of the Defender, endorses the test and agrees its examination in a later session.
Below we will refer in a general way to the way in which the means of evidence regulated in the law are practiced in the Oral Trial, since their study in particular has been dealt with in another part of this work.
IX.- Practice of documentary evidence.
After the defendant gives a statement, the President announces that the documentary evidence is being carried out. The law does not regulate this means of evidence as it does with others (witness and expert), limiting itself to stating that: «The Court will examine by itself the books, documents, papers and other pieces of evidence that may contribute to the clarification of the facts and the surest determination of the truth "(art.338).
Although there is no doctrinal unanimity on the concept of a document, in broad terms and from a procedural point of view we can define it by saying that it is the material support that incorporates, through conventional signs, an expression of human thought and that can be an element of evidence for form the conviction of the judge on the investigated facts. Examples of documents that can be used in the process in addition to traditional written papers: photographs, sound recording, filming, videotapes, discs, floppy disks or compact discs for computers, etc.
The documentary evidence that is practiced in the trial is the one opportunely proposed at the time of the provisional qualification (its proposal in the trial is not possible, except for the special cases that the law provides).
The proposal can be presented (accompanied) materially the document together with the brief of provisional conclusions, or designating the documents whose contribution to the process is interested, indicating the file, registry or place in which they are found for the Court to claim them, or indicating the folio of the corresponding preparatory phase file. In any case, the object of the test (what it is intended to prove) will be exposed.
The Accusation and the Defense, before the conclusion of the trial, must know exactly the constitutive documents of the factual basis of the respective claims, which allows a convenient and timely defense.
In the trial, in correspondence with the principles of orality and publicity, the documentary evidence will be incorporated by reading it in the case of written documents, or in other ways, such as projection in the courtroom (in the case of videotapes), or sound reproduction (recordings), etc., but always safeguarding the indicated principles that inform this act.
X.- Examination of the witnesses.
Witness evidence continues to be the most common in criminal proceedings. Witness, is the person called in the trial to say how much he knows about the object of the same for evidentiary purposes. That knowledge of a past event is obtained through her sensory perception, outside the process. The obligation to give testimony is incumbent on every capable person and not incompatible or excepted. Witnesses are examined by attending the trial, which is a legal obligation, in addition to giving a statement and being truthful. The oral statement of the witness cannot be replaced by the reading of the one provided in the instruction, except for the exceptional cases established by law.
Once the documentary evidence has been completed, the presiding officer announces that the witnesses are examined, and then he tells the bailiff to call them in the order in which they appear on the list (as a rule, one begins with those offered by the prosecution and concludes with those proposed by the accused).
Before giving a statement, the witnesses will not communicate with those who have already deposed, nor should they see, hear or be informed of what is happening in the courtroom, and after giving it, they will only be able to enter it when the hearing is over. practice of all admitted tests (articles 309 and 317). Failure to comply with incommunicado detention will not prevent the witness's statement, but the court will take this circumstance into account when assessing the evidence.
While the witness is standing in front of the court, the president will instruct him about the obligation he has to tell the truth and the criminal responsibility that he would incur if he failed to do so (The President can instruct him using the following phrase: “Witness, you are obligated To tell the truth, without hiding what you know about the facts questioned, if you are not truthful or hide information about them, you may incur a crime of perjury and be punished). Once the witness has been instructed, the president will ask him about his generals and whether he knows the accused and the offended, as well as with respect to the kinship, friendship, enmity or relations he has with any of them (art. 319 and 320). These data must be taken into account to determine the degree of credibility of the testimony, since there are no blemishes in the criminal process.Next, the president orders the witness to respond to the questioning that the party that proposed it will formulate, maintaining a position facing the court and gives the floor to the proposer. Exhausted the questions formulated by the indicated party, the others will be able to question him (on the same subject) and also the members of the court. It can also be cross-examined by those who request it from the president.
The witnesses will testify out loud, answering the questions and cross-examinations formulated, will express the reason for their saying or the origin of the news if they are of reference, and may not be interrupted while they do so, except by the president in the exercise of his functions. (directives and disciplinary).
The president, in the task of directing the debates, will not allow the witness to answer leading, suggestive or impertinent questions or cross-questions.
Tricky question is one that is made based on a false assumption or an artificial or misleading means to induce the witness to testify in a way that he would not do otherwise. The witness is made to believe, for example, that declaring in a certain false sense favors the accused, whose friend he is (Where was your friend the night of the crime, since he says he did not talk to you that night? When in fact they were together?).
Suggestive question, is the one that contains or hints at a specific answer, such as, for example, asking a girl: Did that man sitting on the bench tell you to go with him to his room? (The correct thing would have been to formulate the question as follows: Did that man sitting on the bench say something to you?).
An impertinent question, is the one that is not consistent with the specific procedural object, or that, even having a relationship with it, does not influence the result, or that is addressed to the witness in order to distort what he has declared before, or that it requires knowledge of a fact that the witness cannot clearly possess. An example of this question is asking the witness about the moral conditions of the victim in a crime of homicide.
Leading questions and suggestive questions prevent the witness's statement from being an expression of his own conviction, which is the most basic requirement of his effectiveness. The impertinent can give rise to errors and confusion, always harmful and contrary to justice.
The law establishes particular rules for the examination of witnesses in the following cases:
- When doubts are raised about the inviolability of the secret kept by the witness by reason of his civil or military position, and the confidence is decisive for the decision of the case (art. 168 and 169). The Court may approach the hierarchical superior of the sector or branch to which it belongs, in order to know whether or not he can answer the questions. Witness who is related to the accused: ascendants, descendants, spouses and other relatives up to the fourth degree of consanguinity or second of affinity (article 170). It is not lawful to use the summary statement when the excepted witness makes use of his right not to testify in the trial. Witness inobedient to the judicial appeal, or who, having attended, refuses to testify in whole or in part, or does so evasively (articles 173 and 319). In these three assumptions,the Court will impose a fine of 50 pesos on the witness. In the first case, in addition, it will order its conduct and presentation by the public force. If the witness persists in any of the aforementioned behaviors, testimony will be deducted from the prosecutor for the prosecution of the appropriate crime. Witness physically prevented from attending the trial (art. 328 and 329). The Court itself may be constituted in the place where the witness is located and receives a statement. Witness who does not understand or speak the Spanish language (art. 192 and 324). He will give a statement through an interpreter. Deaf-mute witness (art. 193 and 324). If he knows how to read, he will be asked in writing, in the same way he will answer if he knows how to write, otherwise it will be done through an interpreter.Witness essentially disagrees with his summary statement or does not remember the fact about which he is asked and about which he declared in the investigation (art. 326 and 327). It is necessary to clarify that the purpose of reading the summary statement is not to use it as the basis of the sentence, but to provoke an explanation of the indicated disagreement, which will constitute a useful element for the evaluation of what was stated in the trial. under 16 years (art. 179). By examining the minor witness by means of exploration, it has always been understood that the interrogation free of any legal formalism, carried out in simple and concrete terms, which can be easily understood by the minor. The chairman and the parties can exchange views on how to carry out the exploration,taking into account the point to be investigated and the personal characteristics of the witness, but ultimately the opinion of the witness will prevail. In accordance with the decision that is adopted, the interrogation can be carried out in public or closed doors or in the judges' office, questioning the president and the parties or only the one. In short, this procedural act will be subject to no legal formality. The same rules apply to the assessment of this evidence as for the others: The Court freely appreciates it, according to the reason. Witness residing outside the national territory (art. 175 and 316). The statement will be read in the trial. Witnesses who hold important positions in the leadership of the Party or the State, as well as judges and prosecutors of a higher category than those of the court that corresponds to hear the case (art.188 to 190 and 315). They are exempt from the obligation to attend trial, they can voluntarily appear to testify. Otherwise, the written statement will be read. Witness that constitutes diplomatic personnel, or high-ranking foreign officials (art. 191 and 314). They will provide a statement if they wish, since they are exempt from this obligation.
XI.- Of the expert report.
Expert evidence is the means of proof with which an opinion based on special scientific, technical or artistic knowledge is obtained within the process, useful for the discovery or assessment of an item of evidence (item of evidence, it is all objective data that is legally incorporated into the process, capable of producing certain or probable knowledge about the facts investigated).
In the trial the expert evidence is practiced with the assistance of the experts. Present the expert witness to the court, the president will ask him about his identity, if he is related to the accused or the injured party, or intimate friendship or manifest enmity with these people, or if he has a direct or indirect interest in the process.Questions that are asked for the purpose of determining if you are capable of performing services as an expert. Then the president warns him of the obligation he has to proceed well and faithfully in the performance of his functions, without proposing any other purpose than to discover and declare the truth, and then he gives him the floor to render his report. This report includes the conclusions reached, in accordance with the principles and rules of your science, art, technique or practice. Once the report has been rendered, it is even possible to carry out examinations in the courtroom itself (for example, the injured to describe the characteristics of the scar) or other operations (such as calculating the approximate speed at which the mobile was running),The president will instruct the expert to respond (keeping facing the court) to the questions and cross-examinations, if applicable, that the parties and members of the court direct him, initiating the interrogation by the party that proposed said evidence. The President will not allow the expert to answer leading, suggestive, or impertinent questions.
When any of the parties is dissatisfied with the result of the expert opinion carried out in the investigation phase, the evidence being proposed for the trial, the presence of the experts at the hearing is essential, constituting a violation of the principles that inform this act (immediacy, publicity and orality) the substitution of the presence of the expert by the reading of the opinion that is in the file of the preparatory phase.
XII.- Practice of other tests.
In addition to the evidence presented, in the trial it is possible to practice others such as:
a) Inspection of the place of the events, which will be carried out by constituting the court with the parties in the place of its practice, and doing the examination of the thing that is its object (Article 339). Example: The court is constituted at the site where the road traffic accident occurred, observing the characteristics of the roads and their visibility.
b) Reconstruction of the facts (art. 133 and 134). Example: The court witnesses the reconstruction of the facts in a trial followed by an alleged crime of rape, allegedly committed inside a car by the driver of the same and in the driver's seat, realizing that the version of the event offered the victim is impossible in practice;
c) Confronting witnesses among themselves or with the accused, or among them, if they lend themselves to it (art. 340.1);
d) Recognition of the accused (art. 152);
e) It is possible to practice other tests whose regulation is not in the law, because as expressed in our procedural order the principle of probation rules, then it will be necessary to adjust to the legally regulated procedure that is more similarly applicable.
XIII.- Reading of proceedings that consist of the cause (art.342).
The Law establishes that the proceedings that appear in the case may be read at the request of any of the parties and that for truly impeding reasons cannot be reproduced in the oral trial, these particulars must be recorded in the record of the trial. This provision has its antecedent in the Spanish Criminal Procedure Law (article 730) and its foundation is that the court must find in the trial all the elements necessary to pass the sentence, since the proceedings contained in the investigation file constitute the basis of the accusation, but not of the sentence, which is only the trial (art. 357).
In the aforementioned manner, by means of the public reading (which the secretary will do at the request of the president), a trial of evidence that appears in the investigative file can be entered into the trial and whose reproduction is impossible for really impeding reasons. Examples:
- The witness died and his testimony is very important in the investigation of the fact. The whereabouts of the main witness (victim) is unknown, since he left his home, ignoring where he resides despite the multiple efforts made to locate him.
Faced with these assumptions, there is no other remedy than the incorporation of the statements to the debate by way of reading, despite the inconveniences that this presents, since the possibility of controlling said testimonies by the parties and the court is lost (principle of immediacy).
The reading can be carried out at the request of a party, or ordered by the court ex officio (art. 340.2), and as a rule it should be done (the law does not establish an order), once the practice of the possible tests has been concluded, since only in this it can be determined whether or not it is relevant To conclude the comment on this rule, we must state that the exceptional formula offered by law to incorporate summary proceedings into the trial whose reproduction is impossible, cannot be used to make the oral trial a "read trial", unjustifiably and to the detriment of the principle of immediacy the practice of evidence by reading records of the preparatory investigation (documented evidence proceedings),which would constitute a serious defect that can cause the nullity of the trial through the corresponding appeal (in the case of the Provincial Court).
XIV.- Closing of the proof reception phase.
All the tests opportunely proposed and admitted, because they are pertinent, must be practiced in the Oral Trial. The above is the rule. However, the parties themselves can waive all or part of the evidence they have offered, leaving it to the discretion of the court to make it their own and agree to its practice (art. 341).
Once the possible tests have been carried out, if the proposed and admitted evidentiary material has not been exhausted, the president inquires of the parties if they consider its practice necessary. The parties will express their position in this regard, which may consist of waiving the execution of the test or insisting on its verification. Then the court will decide in one of the following ways:
- If the proposer renounces the test not taken, the court may endorse it and agree to carry it out. If the proposer insists on the execution of the test, the court may accept this criterion.
In these two cases, the trial will be suspended as it is deemed necessary to take the test. The president will inform it loudly, and if possible will indicate the date for the continuation of the same, thus being summoned all the participants, which will be recorded in the minutes of the trial.
It may happen that the proponent insists on taking the test, a request that he will argue with the court, but the court does not deem it necessary and dispenses with its verification, a decision that must also be founded (since he previously admitted it as deemed relevant). Then the party may protest (art.356), stating the reasons for their insistence in the minutes.
Both in the event that all the proposed and admitted tests have been carried out, as in the previous case (the court did not consider it necessary to carry out the tests that were not carried out), the president will publicly declare that the phase of reception of the tests has been concluded and that is passed to the final qualifications.
XV.- Continuity and suspension of the Oral Trial sessions.
Open the Oral Trial, it will be held without interruption during all the consecutive sessions that are necessary until its completion. During said sessions, the court may agree to short recesses, ex officio or at the request of the parties (art. 344 and 347).
The law provides for the suspension of the beginning of the trial sessions in the following cases:
- When the parties, for reasons independent of their will, do not have prepared the evidence offered in their respective writings (art. 345). Example: One of the parties has proposed an expert test of high scientific rigor due to the particular complexity of the matter. On the day of the start of the trial session, the execution of said test has not yet concluded, which will take several months. Before the absence of all the witnesses called to testify, (art. 346.3.a)); There being only one accused the cause, he or his defender does not appear (article 346.6); having several defendants and defenders in the case. The absence of one of the former does not allow the holding of the trial in relation to the others, since it would transcend the very continence of the justiciable facts,or the non-appearance of a defender does not allow his immediate replacement by another of those present, as there is incompatibility between the defenses or a serious inconvenience to justice.
The law also establishes the obligation to start the trial and its subsequent suspension to continue it in the following cases:
- When an incidental question that cannot be decided on the spot has to be resolved by the court (346.1). When evidence has to be taken outside the place of the sessions (346.2). In the absence of any of the proposed witnesses (by analogy also the experts) (art.346.3) b)) When one of the obligated participants in the trial suddenly becomes ill: defendant, members of the court, defender or prosecutor, the immediate replacement of the latter two is not possible (art. 346.4). Unexpected revelations or retractions produce substantial alterations in the trial, making necessary new evidence, or some summary supplementary instruction (article 346.8). Example: In a trial followed by a crime of Injuries, the day of its celebration is reported,that the victim died as a result of them.
The resolution adopted by the court to suspend the start of the trial session will take the form of an order (article 346, last paragraph). The one that dictates in the stands once the trial has begun, agreeing its suspension to continue it, will be verbally, the interested parties being notified, and whose record will remain in the minutes.
The law gives the court sufficient powers to bring defendants, witnesses and inobedient experts to trial. Regarding the former, you can adopt any of the anticipated precautionary measures (provisional detention, cash or moral bond, home confinement or obligation contracted in a periodical presentation certificate) ordering their arrest. As for witnesses and experts, you can order their conduction and presentation by the public force, fine them, and, where appropriate, deduce testimony from the prosecutor so that the possible crime in which they incurred is prosecuted (articles 173 and 206).
Finally, it is indicated in the law (art. 348), that as for the trial initiated that the suspension is prolonged indefinitely or for too long a time (although it is not said which one), the part held will be annulled and the party will be cited. a new trial. This rule is the guarantor of the principle of concentration or continuity of the trial.
At the beginning of the session to continue a previously suspended trial, the president must make a summary of what happened in the last session (publicity principle).
XVI- Of the definitive conclusions.
Announced by the President that it is going to the final qualification phase, he asks the parties for their position in this regard, starting with the accusation, and after listening to it, he will ask the defender (to comply with this procedure, the president can use the following sentence: The parties must express their final qualification. The prosecutor has the floor… The defender has the floor).
The prosecutor will answer the president's question, adopting one of the following positions:
1. Maintaining its provisional conclusions as final. To assume this position, the prosecutor, who has the task in the criminal process of "impute and prove", must have reached a firm conviction (certainty), free of any doubt, and based on the evidence produced in the trial (no the intimate belief is enough), which managed to demonstrate the accused act, that this constitutes a crime of which the accused is guilty and therefore deserves a sentence, considering that it has thus destroyed the state of innocence of the accused.
2. Withdrawing the accusation for any of the following reasons, among other possible ones;
a) The alleged act does not constitute a crime;
b) Although the accused act constitutes a crime, the accused did not participate (author or accomplice) in it;
c) Present a circumstance exempting criminal responsibility, or an acquittal;
d) Not having the firm conviction, that is to say, the certainty (free of any doubt) that the imputed fact has been demonstrated with the evidence produced in the trial (the proven fact lacks an evidentiary basis);
e) Being a fact that, because it lacks social danger, even if it includes the formal elements of the crime, should not be subject to criminal repression (art. 8.2, CP);
f) Contest one of the peremptory exceptions mentioned below: res judicata, prescription of the action or amnesty (art. 290.2), 3) and 4) and 302).
In processes that have several procedural objects and several accused, the withdrawal of the accusation may be limited to one of the facts (specific object of the process) or to some of the accused.
In practice, the prosecutor limits himself to expressing orally that he withdraws the accusation (he commonly uses the phrase: President the Office of the Prosecutor withdraws the accusation), he will also do so in writing, without offering any reasoning for the reason for that decision. We hold the opinion that said official should found such a resolution, so that all those present, including the accused himself, who has been subjected to all the inconveniences and inconveniences of a criminal process, know its basis, which is typical of transparency. that must characterize the administration of justice. The withdrawal without explaining its basis, can give rise to the most dissimilar interpretations.
The prosecutor, when acting in the aforementioned manner (withdrawing the accusation), does so in accordance with the principle of objectivity that characterizes his function (as well as that of the judges), since he does not seek an extreme sentence, and his performance has to be in accordance with a legal discourse, which forces him to appreciate in his resolutions the circumstances, both adverse and favorable to the accused (article 2), and may even establish an appeal in his favor, seeking the correct application of the law.
With the accusation withdrawn by the prosecutor, the court may act in the following ways:
a) Disagreeing with the prosecutor's decision, believing it unjustified, he takes charge of the accusation in the terms in which it was originally raised by the Prosecutor's Office. In this case, it will use the formula established by law (art. 350) and to which we will refer later. When the court considers the possibility of using the invoked formula, before making such resolution public, it should order a brief recess for the analysis and discussion of this issue in the deliberations room, due to the complexity of the procedure.
b) The court accepting the withdrawal of the accusation by the prosecutor. Then the president will tell the accused to stand up in front of the court, and will explain what happened in simple and understandable terms for him, concluding that he is freely acquitted, ordering him to leave the dock if there are others against whom follow the judgment. If he is the only one, he declares the session closed, (phrase that could be used: Accused, stand up. The prosecutor has withdrawn the accusation that he sustained against him. The court decided not to use the formula granted by law to maintain the accusation. You are freely acquitted). In this case, there is nothing to ask the defender. If there are a plurality of defenders and defendants, and the withdrawal is only for one of these, the president will request the defender,that he leaves the stands, since his function ceased, which he will do after signing the record of the trial. If he is the sole defender, he declares the trial concluded, as already stated.
3. Modifying, in whole or in part, its provisional conclusions. The prosecutor will proclaim that he modifies said qualifications, which he will deliver at that time in writing. The president orders the bailiff to receive the document with its copy, delivering the original to the clerk and the copy to the defender. Next, he tells the secretary to read the amendment document, so that all present are informed of its content (principles of publicity and orality).
The rationale for the modification of the provisional ratings is not based on the possibility of correcting errors in these (which does not mean that errors can not be corrected if they exist at that time), but on the divergence that may have existed, between the fact as it appeared probable before the trial took place and the fact as the prosecution believes proved after the trial was carried out; Therefore, both the fact and the legal qualifications can be modified in this process and this is not necessarily due to previous mistakes.
The legal qualifications (crime, concept of participation and circumstantial) and the type of penalty and its extension, can be modified without limitation. The Prosecutor can definitively qualify in a more or less serious way for the accused, than as he did in his provisional conclusions. You can change all legal qualifications or just some or some. Eg: only the issue of participation, or include an aggravating or mitigating circumstance not previously qualified.
The aforementioned freedom to modify the legal qualifications does not apply to the first of the conclusions formulated by the accusing party (alleged fact), since the object of the process, which constitutes a specific historical event attributed to a person, can only be modified, insofar as this does not imply including any element or circumstance that implies a substantial alteration of the same, as it would affect the fundamental right of defense. The non-alteration of the imputed fact in a substantial way means, "not to include a different person, or a different fact from those included in the provisional classification." Example:
In the provisional qualification brief, a fact is imputed that the defendant broke the window of a foreign home, the place where he entered, taking clothing owned by the resident, with which he was caught near the scene by law enforcement officers (fact qualified as part of a crime of robbery with force in things. Art. 328.1 a) and c), CP). The prosecutor cannot, at the moment studied, vary the fact by narrating that the defendant knowingly bought the garments from the thief, and that he was caught with them near the place of the fact by law enforcement officers (then qualifying the fact as member of a reception offense). Art. 338.1, CP). Well, in this example, although the modified fact favors the accused and also the classification of the crime, said variation is not possible,since it is a new fact, from which the accused did not defend himself in a timely manner. The correct thing to do would be to request acquittal for the act originally charged (theft), which would not prevent the new act from being pursued in another process. This situation may have been resolved, if the prosecutor formulates alternative provisional conclusions, understanding the two cases, which allows the timely defense in both cases, and in the final qualification process, he will choose the one he considered proven (If the prosecutor formulated conclusions alternatives, at the time of final qualification, you can only maintain one of the positions, which is a sign of security and certainty in your performance).which would not prevent the new fact from being pursued in another process. This situation may have been resolved, if the prosecutor formulates alternative provisional conclusions, understanding the two cases, which allows the timely defense in both cases, and in the final qualification process, he will choose the one he considered proven (If the prosecutor formulated conclusions alternatives, at the time of final qualification, you can only maintain one of the positions, which is a sign of security and certainty in your performance).which would not prevent the new fact from being pursued in another process. This situation may have been resolved, if the prosecutor formulates alternative provisional conclusions, understanding the two cases, which allows the timely defense in both cases, and in the final qualification process, he will choose the one he considered proven (If the prosecutor formulated conclusions alternatives, at the time of final qualification, you can only maintain one of the positions, which is a sign of security and certainty in your performance).He will choose the one he considered proven (If the prosecutor formulated alternative conclusions, at the time of the final qualification, he will only be able to maintain one of the positions, which is a sign of security and certainty in his performance).He will choose the one he considered proven (If the prosecutor formulated alternative conclusions, at the time of the final qualification, he will only be able to maintain one of the positions, which is a sign of security and certainty in his performance).
To conclude this point we will say that at the time of the final qualification the prosecutor may: withdraw the accusation, maintain it or modify it. In the last two cases, the president, after hearing the opinion of the prosecutor, will ask the defender about his final qualifications, since he can only pronounce on them when he knows the terms of the accusation. The defense may maintain as final two or more conclusions alternatively (art. 349), it may also modify them. The modification will be delivered in writing (then the procedure will be similar to that set forth with the prosecutor).
Once the parties have established their final positions in the debate, the court may act as follows:
- Announcing the president that he is going to the moment of oral reports (It is common that in complex matters, the presiding officer asks the parties if they are prepared to report, if not, he can decree a brief recess), or; Using the president the formula established by law and which may be used before the prosecution withdraws the accusation or to aggravate it.
XVII- Use of the Formula (art. 350).
The most immediate antecedent of this institution for our procedural laws (Law 1251 of 1973 and Law 5 of 1977), is found in the Spanish procedural order (art. 733. LECrim.), Where it is established as follows:
“Without being seen to prejudge the final ruling on the conclusions of the accusation and the defense, the Court wishes that the Prosecutor and the Defenders of the accused (or the Defenders of the parties when there are several), illustrate to him whether the action that is justifiable constitutes the crime of… or if there is a circumstance that exonerates the responsibility referred to in number… of article… of the Penal Code ”.
This institution appears in Spanish Law, in order to make the principle of official investigation compatible with the accusatory form of the procedural stage of the oral trial, granting the Court the power to propose to the parties the examination of a new point of view in order to qualify the facts; that is, to modify the legal basis of the punitive claim, when it considers, due to the results of the oral trial tests, (exclusive basis of the sentence), that the fact has been classified as a manifest error. Thus being able to dictate a conviction, whose title of conviction is different from that deduced by the accusation, resulting in the new qualification more serious than the one originally raised. Avoiding in the indicated way, according to the governing criteria of that law, an exaggeration of the accusatory form,incompatible with the principle of official investigation.
The aforementioned precept of the Spanish Procedural Law (art. 733), governed in those original terms in our country, being modified by Order 109 of 1899 of the North American Interventor Government, and by art. 305 of the Organic Law of the Judicial Power of 1909. The last modification to said institution appears in Law 1251 of 1973 (art. 355) whose text in its content is similar to the one that governs the current Law (art. 350). The aforementioned modifications have been expanding the powers of the Court, granting it the possibility of assuming functions of the prosecution.
Regarding the institution treated (formula), we hold the following criterion: Our criminal procedure model is classified as mixed (or reformed inquisitive, since unfortunately, preliminary investigations -summary-, which are the basis of the accusation, but not of the sentence, they go through the oral trial phase like a ghost, sometimes constituting the basis of the sentence), where in the oral trial phase, essentially, the characteristics of the accusatory system govern, among these, the one that establishes a clear distinction between the functions of investigation and prosecution, and that of trial, which are handed over to different bodies, the court not being able to supply the initiative of the prosecution, and only acts at the request of the prosecution, which establishes the limit of the orbit of judicial procedure.
Notwithstanding the laudable purpose of the legislator, to avoid that the Court has no choice but to go through the error of the accusation, with a loss of justice, for being bound to the terms of the accusatory speech, and for which it created the aforementioned formula, which undoubtedly constitutes a limitation to the accusatory principle that inspires this decision-making phase of the process. Our point of view is that the Court should not, under any basis, proceed on its own initiative to aggravate the terms of the accusation, or to sustain it when it is withdrawn. The demonstration of the truth of the accusation is the exclusive task of the prosecution, who only corresponds (not the judges) to destroy the state of innocence, since it does not have to be proven,since it is the natural state of all human beings in a civilized society and is presupposed and protected by the legal system. The role of the Tribunal shall consist exclusively in examining the facts that the parties contribute, deciding on their truth, directing the debates and announcing the result.
Assigning crime prosecution functions to the Court, in addition to removing it from its position as an impartial subject, equidistant from the prosecution and the defense, makes the aphorism come true: "whoever has a Prosecutor as a Judge, needs God as Defender." On the other hand, trying to justify this position, adducing the possibility that the prosecution makes mistakes (nothing indicates that the accusers make more or fewer errors than those who judge), the solution must be another, the strengthening in all orders of the institution entrusted by the Constitution (art. 127) with the prosecution of public crimes.
Undoubtedly, it is a sad scene for the image of impartiality that must characterize justice, which is not for pleasure represented by an equilateral triangle, and is symbolized with a balance, whose two saucers are balanced and at the same distance from the faithful., that those who have the function of deciding, suddenly, become accusers. Assuming in this way, tasks of dubious constitutionality, since in accordance with our fundamental law (article 127), the promotion and exercise of public criminal action on behalf of the State for the prosecution is reserved for the Attorney General of the Republic. of (public) crimes, from the text of which it is deduced, that judges are not entitled to carry out the tasks of the prosecution.
The aforementioned formula, in the terms in which it appears in our current Law, can be used by the Court, in the following cases:
- Withdrawn the accusation (only in case of public crimes). If the Court deems this decision wrong, it will take charge of the accusation in the same terms that the Prosecutor did before its withdrawal, and will issue a judgment in accordance with the Law (art. 357, LPP); If in the case of action it has been omitted include some non-essential element. Note that it is an element or circumstance that, without substantially altering the facts, can affect the classification of the crime. Example: in the case of a crime of violation of domicile of the basic modality (art. 287.1, CP), the time in which it was committed was not exposed in the imputation. In the oral trial, it was demonstrated that the night was chosen on purpose for the crime (night). It is possible under this assumption, the inclusion of the indicated data,and consequently, raise the new qualification of the aggravated type (art. 287.1 and 2, CP); If an error has been made in the classification of the crime. Exposing here the most serious qualification that is considered appropriate and its basis; If there has been an error in the qualification of the terms of the participation. It was classified as complicity, the Court understanding that it is authorship; If aggravating circumstances that were not classified occur in the justiciable facts; Finally, when the Court understands that it is appropriate to impose a more serious sanction than that requested by the prosecution. Here it refers to the type of sanction and not to its extension within the criminal framework, so that the court may not impose a more serious sanction than that requested by the prosecution, but a greater sanction in its extension within the indicated class.raise the new qualification of the aggravated type (art. 287.1 and 2, CP); If an error has been made in the classification of the crime. Exposing here the most serious qualification that is considered appropriate and its basis; If there has been an error in the qualification of the terms of the participation. It was classified as complicity, the Court understanding that it is authorship; If aggravating circumstances that were not classified occur in the justiciable facts; Finally, when the Court understands that it is appropriate to impose a more serious sanction than that requested by the prosecution. Here it refers to the type of sanction and not to its extension within the criminal framework, so that the court may not impose a more serious sanction than that requested by the prosecution, but a greater sanction in its extension within the indicated class.raise the new qualification of the aggravated type (art. 287.1 and 2, CP); If an error has been made in the classification of the crime. Exposing here the most serious qualification that is considered appropriate and its basis; If there has been an error in the qualification of the terms of the participation. It was classified as complicity, the Court understanding that it is authorship; If aggravating circumstances that were not classified occur in the justiciable facts; Finally, when the Court understands that it is appropriate to impose a more serious sanction than that requested by the prosecution. Here it refers to the type of sanction and not to its extension within the criminal framework, so that the court may not impose a more serious sanction than that requested by the prosecution, but a greater sanction in its extension within the indicated class.If an error has been made in the classification of the crime. Exposing here the most serious qualification that is considered appropriate and its basis; If there has been an error in the qualification of the terms of the participation. It was classified as complicity, the Court understanding that it is authorship; If aggravating circumstances that were not qualified occur in the justiciable facts; Finally, when the Court understands that it is appropriate to impose a more serious sanction than that requested by the prosecution. Here it refers to the type of sanction and not to its extension within the criminal framework, so the court may not impose a more serious sanction than that requested by the prosecution, but a greater sanction in its extension within the indicated class.If an error has been made in the classification of the crime. Exposing here the most serious qualification that is considered appropriate and its basis; If there has been an error in the qualification of the terms of the participation. It was classified as complicity, the Court understanding that it is authorship; If aggravating circumstances that were not classified occur in the justiciable facts; Finally, when the Court understands that it is appropriate to impose a more serious sanction than that requested by the prosecution. Here it refers to the type of sanction and not to its extension within the criminal framework, so that the court may not impose a more serious sanction than that requested by the prosecution, but a greater sanction in its extension within the indicated class.If there has been an error in the qualification of the terms of participation. It was classified as complicity, the Court understanding that it is authorship; If aggravating circumstances that were not classified occur in the justiciable facts; Finally, when the Court understands that it is appropriate to impose a more serious sanction than that requested by the prosecution. Here it refers to the type of sanction and not to its extension within the criminal framework, so the court may not impose a more serious sanction than that requested by the prosecution, but a greater sanction in its extension within the indicated class.If there has been an error in the qualification of the terms of participation. It was classified as complicity, the Court understanding that it is authorship; If aggravating circumstances that were not classified occur in the justiciable facts; Finally, when the Court understands that it is appropriate to impose a more serious sanction than that requested by the prosecution. Here it refers to the type of sanction and not to its extension within the criminal framework, so that the court may not impose a more serious sanction than that requested by the prosecution, but a greater sanction in its extension within the indicated class.Finally, when the Court understands that it is appropriate to impose a more serious sanction than that requested by the prosecution. Here it refers to the type of sanction and not to its extension within the criminal framework, so that the court may not impose a more serious sanction than that requested by the prosecution, but a greater sanction in its extension within the indicated class.Finally, when the Court understands that it is appropriate to impose a more serious sanction than that requested by the prosecution. Here it refers to the type of sanction and not to its extension within the criminal framework, so that the court may not impose a more serious sanction than that requested by the prosecution, but a greater sanction in its extension within the indicated class.
Once the formula has been used by the court, in the terms that the president will present, this official invites the parties to illustrate to said body about the particular issues raised. Said illustration consists of expressing the criteria of the parties on the subject proposed by the court, which may be done later, before the final oral arguments (reports), or in the course of these. In practice it is done indistinctly.
XVIII- Final discussion: Oral reports.
At the time of reporting, the president gives the floor to the prosecutor in the first order, after giving his argument, he will give the floor to the defense with the same purpose (if there are several defenders, the president will decide in which turn they will report). The parties will address the court, which they may do standing or sitting (art. 308).
In this final discussion phase, both the prosecution and the defense will present to the court the solution they propose for the matter, by analyzing the evidence produced and the applicable regulations.
The reports are aimed at the final qualifications, to which they will be accommodated, and where appropriate, also to the formula proposed by the president (art.354). The following topics are addressed in these: facts that are considered proven in the trial, their legal qualification, concept of participation, concurrent circumstances, measurement of the penalty and civil liability, among other possible ones, but always adjusted to said qualifications. The style of the reports can be varied, and is in correspondence with different factors, among which is undoubtedly the degree of complexity of the matter.
The presiding officer is empowered to prevent any wandering, repetition or interruption. You may also request from the speaker more information on a certain aspect of your final thesis. In the event of manifest abuse of the word, you may call the attention of the latter, and if it persists, limit the time of the argument. After the oral arguments, the parties will only be allowed to speak to rectify facts and concepts (art. 354).
In this act, memorials cannot be read, without prejudice to the partial reading of notes to aid memory.
XIX- Right of last word of the accused and closure of the trial.
Once the reports are finished and before closing the trial, the president will grant the floor to the accused, ensuring the law that he can exercise his material defense until the moment before the sentence (art. 355).
The accused may express what he deems appropriate in his defense, even when he has not previously declared. This is the last chance you have to address the court. Whoever presides, will take care that he does not offend morals or disrespect due to the court or the considerations corresponding to all those present and that he adheres to what is pertinent, being able to withdraw the floor when he understands it (The president will address the accused saying to him: "Accused stand up, you want to add something in your defense", and if he responds in the affirmative he will say: "You have the floor, testify").
This statement can provide the court with important elements to form its conviction about the facts under investigation.
Once the defendant has been deposed, the president declares the trial concluded for sentencing.
XX- Record of the trial.
The record of what happened in the trial is intended to allow its subsequent review. Minutes of each trial session are issued by the clerk, stating, in addition to the general data on the act, everything that has occurred of importance, among which is the result of each of the tests performed. The protests of the parties and their substantiation will also be recorded. The minutes will be signed by the members of the court, the prosecution and the defender, after the president has declared the trial closed. In addition to extending the record, the trial may be recorded by other means such as recording or filming.
