Sunday, November 6, 2011

Major Legal Changes on Their Way to the Yucatan

By Edward V. Byrne for The Yucatan Times
June 20, 2011

In the United States, Canada and Great Britain, citizens have long taken for granted certain legal rights when accused of a criminal offense. The presumption of innocence, the right to a fair trial and the ability to vigorously confront and challenge the prosecution’s evidence in a proceeding presided over by a neutral judge are the hallmarks of the Anglo-American system of criminal justice, which traces its roots back more than a thousand years. But these legal protections are unknown in Mexico, where “guilty until proven innocent” has always been the rule. Now all that is about to change dramatically, and the Yucatan is one of the first of the 31 Mexican states to implement a radically new criminal justice system, with many procedures borrowed directly from English-speaking countries.

Based upon core constitutional changes adopted by the Mexican government in 2008, the so-called Penal Reforms (Reformas Penales) are now well under way, although it is expected that many years will pass before they are fully implemented. Anyone accused of a criminal offense under the new system, particularly a serious charge, will be entitled to an “oral trial” (juicio oral), which will be similar (although not identical) to the type of criminal proceeding with which U.S. and British citizens are already well acquainted. An oral trial means that in order to prove a criminal case against an accused person, the prosecutor must present live testimony from witnesses in the courtroom in the presence of the judge. Those same witnesses will then be subjected to interrogation by the defendant’s attorney. The purpose of these interrogations, known as direct and cross-examination, is to test the credibility of the witnesses, so that the judge can decide who is telling the truth and who isn’t, and thereby arrive at a fair and just verdict in the case. This type of trial has been used exclusively in U.S., British Empire and Canadian criminal courts for hundreds of years, and in fact is guaranteed to all American citizens under their constitution. But in Mexico, all of these procedures are quite new and different.

Throughout the country, and particularly in Yucatan State, local prosecutors (known as fiscales or procuradores), defense attorneys (abogados defensores) and judges are trying to master the intricacies of American-style criminal trials as quickly as possible. On May 27, at Merida’s Siglo XXI Convention Center, over 3,000 people gathered to attend a special symposium dealing with the imminent penal reforms, the procedures for oral trials and what these events will likely mean for Mexico’s criminal justice center in the years ahead. In addition to attorneys, judges, law enforcement officials and representatives of the press, the symposium was heavily attended by ordinary citizens anxious to learn about the changes. The event was open to all, free of charge. Principal speakers and presenters included a former New York state court judge, and a team of U.S. public defenders from San Diego. They presented a five hour seminar in the morning, followed by a mock criminal trial in the afternoon, using case facts borrowed from a U.S. criminal proceeding. “Witnesses” in the mock trial were portrayed by actors. The entire presentation was in Spanish, and was followed by a detailed question and answer session.

In addition to the substantial time necessary to retrain members of the legal profession in the new criminal justice system, there will be significant other costs as well. New courtrooms of the type utilized in the United States and Great Britain will have to be built in existing Mexican judicial facilities, necessitating significant retro-fitting of some buildings. One recent report by local authorities suggested a cash outlay of up to several millions of dollars will be necessary in the Yucatan to construct modern courtrooms designed to accommodate the new oral trials.

Although the penal reforms were approved by the federal government three years ago, they were given even greater impetus by the controversial film Presumed Guilty (Presunto Culpable) which appeared in Merida and throughout Mexico earlier this year. The film received wide-spread attention in the national press when it was temporarily removed from theatres by a federal judge, whose order was later overturned. The Spanish language documentary, produced by a Mexican filmographer, details the conviction and three year incarceration of a young man convicted of homicide on very shaky evidence. The film focuses on Mexico’s heavily prosecution-biased system, which historically has convicted the vast majority of accused persons, usually on the basis of written documents and without the judge ever hearing from witnesses subjected to the test of cross-examination. Those procedures will change dramatically when the new reforms are fully implemented.

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