By Frank S. Osorio
Master of Law in Advocacy
Southwestern Law School
Several countries in Latin America have reformed their Criminal Justice System, specifically in the area of Criminal Procedure. This is also the case of Mexico, who in June 2008 reformed several articles of its Federal Constitution. These changes in Mexico were introduced to improve the protection of human rights, social justice, and mainly to fight against criminality.
Within the last fifteen years, the Federal Constitution of Mexico has undergone several reforms. Between the years 1917 and 1993, the reforms that Mexico underwent were not as substantial and important as the ones today. In 2004, Mexico expressed their first attempt to reform their Criminal Procedure system in response to the social unrest created by rising criminality; however, those attempts did not produce any results.
In early 2007, due to the incredibly high criminal activity and the country’s inability to put an end to such activity, which caused social unrest, the call for constitutional change once again emerged to the forefront. At this time, the proposal arose to adopt some solutions mainly from the experience of the countries that have the Adversarial System such as United States of America.
At that time, the reform project included the need to change the Criminal Procedure. The new tendency was to adopt the Adversarial or Accusatory system, which is used in the United States, over the Inquisitorial one, which is the one Mexico has always used.
The inquisitorial system, commonly used in civil law jurisdictions, consists of statutes that are part of a code, which is the dominant authority that regulates the proceedings; this is called statue-bound, where the legislatures draft statues, directives and rules to establish the way that the law must be applied. Under this system, the courts interpret and apply the law, but they do not create it. On the other hand, the common law gives judges the opportunity to emphasize case law by focusing on individual cases, and building on precedent, stare decisis, to fill the gaps over time.
The differences between both traditions are better described by Alfred W. Cortese Jr. and Kathleen L. Blaner in their book, Civil Justice Reform in America: A Question of Parity with our International Rivals, “Under an adversarial system, the litigants are in charge. They develop their cases, presenting the evidence that is most favorable, and leaving it to their adversary to negate or discredit their position. Presented with two conflicting sides to the dispute, the neutral judge or jury hears the conflicting evidence, decides what the truth is, and determines which side should prevail. In an inquisitorial system, the judge is the primary actor, actively seeking evidence from both sides, directing the parties’ actions, and providing constant commentary on the quality of the case and the likely outcomes.”
Based on my experience as a Defense Counsel in Mexico and having worked at the Court, there are several flaws that I have observed with the inquisitorial system, such as: a built-in bias against defendants, a slow process due to the obligation to keep everything on written material, the high level of bureaucracy, the high level of corruption and also the Court’s overload due to the lack alternative dispute resolution methods.
Due to all the foregoing, the reform, undergone by Mexico, adopted the Adversarial System in order to protect the victim, improve human rights and guarantee defendants a fair trial. Currently, the following are the stages that must be undertaken in a Criminal Proceeding: the investigation, filing charges, first appearance, preliminary hearing, indictment and arraignment, and then Trial. One aspect that was not adopted by this reform is the Jury. Due to this, Mexico will have bench trials, where one judge will decide the matter presented.
The reform seeks to assure different principles, such as: presumption of innocence, equal party rights, publicity and transparency of the trial, a judicial determination concerning all matter, impartial Judge, speedy trial and the substitution of the written material to oral arguments.
The reform grants 8 years to all the states in Mexico to switch their Criminal Procedure from an inquisitorial system, to an adversarial system; the deadline for all the states is 2016. Before 2008, some states, such as Chihuahua, Nuevo Leon and Oaxaca had already changed their Criminal Procedure, thus they are currently working with this new system. Moreover, more than 10 other states are in the process of reforming their local constitutions to implement the accusatorial system, and the remaining states have not started yet.
The United States Office of Democracy and Governance has said that these reforms “afford genuine opportunities and hope for due process and a fair trial, and have elevated the standards of individual rights, guarantees, accessibility, accountability, transparency, and public debate. They hold promise to achieve the goals of combating impunity while better protecting the rights of defendants.”
Overall, this is a big change for Mexico. In order for this reform to be successful, it will require complete adherence by all those participants in Criminal Proceedings, such as Judges, District Attorneys, Defense Attorneys and also the students who are going to be the professionals working with the new System in the years to come.