Introduction mphil thesis roberto fernandez medina comparative criminal procedure
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  • 1. Criminal Justice Reform in Latin America: Is the Adversarial System the Best Alternative? A Comparative Analysis Roberto Fernández Medina Mphil University of Cambridge Licenciado en Derecho Universidad de Sonora robertofernandezm@yahoo.comINTRODUCTIONIn the field of comparative criminal procedure, recent Latin American reform movements appearas the largest and most notable event in the 20th century. Of 26 states in Latin America, 19 arein transition from an inquisitorial to an oral-adversarial system of criminal procedure. Forinstance, between 1998-2001 Bolivia, Chile, Paraguay, Ecuador and Venezuela undertook deepstructural reform of their criminal justice systems. Technically and financially assisted byinternational organisations, the endeavour included radical shifts in both administrative andlegal procedure. The administrative changes in the judiciary aimed to reinforce its independenceand make it more efficient. The legal reforms, on the other hand, implied the replacement of awritten-inquisitorial system for an oral-adversarial system. According to the redactors andscholars who encouraged and led this reform project, the goal is to build fairer trials, eradicatethe problems of abuse of power and reduce the backlog of cases delayed. It was contendedthat in order to achieve those goals it was necessary to entirely abandon the inquisitorialsystem inherited from Spain.There are several questions that arise from such a perspective. Why do South Americansbelieve that the written-inquisitorial written system had to be entirely replaced? Why do theybelieve that a radical shift towards the adversarial system will contribute to eliminate thoseproblems? In principle, scholars and reformers have quoted the existence of two dominanttheoretical perspectives within the literature: the “inquisitorial” and “adversarial” approaches.While inquisitorial model is perceived as bad, the adversarial is perceived as good. As I shallexplain below, the reformers represent a dichotomy of adversarial and inquisitorial models asbad and good systems. While the adversarial system is seen as an ideal system, the inquisitorialis represented as the origin of all problems.The aim of this essay is to explore some of the disadvantages of the adversarial system and toreflect upon the problems that South Americans might face. It is not the goal to determinewhether one system is superior to another. Instead, I believe that recognition of disadvantages
  • 2. and lessons learned of a given system are indispensable in order for lawmakers to find abalance and for devising the mechanisms that are best suitable for a country’s needs.Why study South American reformsThe main motivation for undertaking this research is my concern on whether Mexico shouldfollow South Americans path in replacing the written-inquisitorial proceedings for an oral-adversarial system. Mexico has been recently criticised by several South American scholars onthe grounds that it has only introduced partial reforms and it has not considered the possibilityto undertake a reform endeavour along South American countries. It is assumed that Mexico isfalling behind in Latin American reform movements since it has not abandoned entirely thewritten-inquisitorial tradition transplanted from Spain and France, particularly the writtenmechanism to present the evidence at trial. In a crucial moment of political transition, Mexico iscertainly seeking new mechanisms to improve the quality of justice by providing quicker andmore accurate decisions while reducing the backlog of cases. South American reforms preciselyaim to target those aspects. Unlike the new Chilean code, however, Mexico still keeps thewritten-inquisitorial system of presenting evidence collected at pre-trial stages in a dossier.Thus judges base their decisions on the basis of the dossier oftentimes without seeing the facesof the defendant and witnesses. This mechanism has been often called as “Trials withoutFaces”.One of the most significant changes under the new Chilean code is precisely in the nature oftrial. In the new code, the defendant and prosecutor are given a greater role while the court’srole is dramatically reduced. As in the adversarial system, the new Chilean code places centralimportance on the trial as the means by which the parties present and debate the evidence thatthey have discovered. By contrast, in the former written-inquisitorial systems the trial became abureaucratic step in the process since the determinant evidence has been gathered in thedossier during previous stages. The new code requires that evidence be presented orally ratherthan through written summaries as under the previous code. In order to accomplish that goal,strict exclusionary rules of evidence have been erected so that courts do not use writtenstatements and hearsay evidence collected at pre-trial stages for evidentiary purposes. Instead,courts will have to base their decisions only on the evidence presented during the trial stage.The purpose of this shift is have the judges receive a fresh impression and that the evidence isintroduced into trial orally so that all participants are aware of it and are in the position torespond. In other words, courts in the new system are required to go to trial with “a virginmind” and to find the truth as a result of partisan struggle as in adversarial systems. Theseexclusionary rules have been called in continental Europe as the principles of Orality and
  • 3. Immediacy. In addition, in an ambitious attempt to protect defendants against abuse of power,the new Chilean code prescribes that the police will not be even permitted to interrogate thedefendant in the aftermath of crime unless the defence attorney is present.The key question is whether Mexico is prepared to erect such exclusionary rules and whetherthey are indispensable for improving the quality of justice. In my view, it is not clear how theapplication of the so-called principles of oral hearing and immediacy might contribute to buildfairer trials while accelerating the proceedings and reducing the backlog of cases delayed. It isimportant to note that Mexico as South Americans are economically poor countries, habituatedto carry out proceedings in writing for centuries. Thus, it is not clear how a radical shift willimpact on the habits and behaviours of the actors in the processes. As I shall explain in chapterthree, while such exclusionary rules have advantages, they might also complicate the discoveryof truth and make trials more complex and time-consuming. So far, no empirical evidence hasbeen quoted to support the proposition that the adoption of an oral-adversarial system, in aculture accustomed to writing procedures, will result in fairer, quicker and more efficient trials.As it happens, the reforms are largely based on models and academic ideology.In chapter one, I will address a general overview of the origins and implications of SouthAmerican reform movements. In principle, I shall quote several scholars’ views towards thereforms in different countries. We will see the ideas through which they consideredindispensable to entirely replace the inquisitorial system inherited from Spain for an oral-adversarial system. I will criticise the fact that South American scholars represent a dichotomyof adversarial and inquisitorial systems as bad and good systems, and how the adversarialsystem is erroneously seen as an ideal system of criminal procedure.In chapter two I shall explain how both adversarial and inquisitorial system has been criticisedby western scholars. I will address the advantages and disadvantages of both systemsparticularly in the methods they use to discover the truth. The aim of this chapter is to showhow both systems have substantial problems that should be taken into account when doingtransplants from one country to another.In chapter three, I will focus the analysis on the trial stage. I will review the literature regardingthe principles of Orality and immediacy. We will see how concerns are expressed in that theseexclusionary rules may result in the loss of valuable information since highly probative evidenceis excluded. Likewise, I shall explain how inconsistent findings have been reported upon theimpact of oral hearing and physical appearance in court decisions. In chapter five we will seehow a quite identical reform endeavour (Italian reform of 1989), has not fulfilled the goals of
  • 4. accelerating the process and reducing the backlog of cases delayed by the adoption of an oral-adversarial system.It is important to emphasise that is not the aim of this essay to imply that South Americanreforms are pre-destined to fail and that Mexico should not undertake such a reform. On thecontrary, the aim is to raise questions undressed and encourage further research so that theproblems can be avoided in future reform endeavours.This work is exclusively concerned with contested trials in which defendants plead not guilty.For more information: robertofernandezm@yahoo.com