Revista De Investigación Simiyá ULSA Chihuahua, Año I, Número 0, Enero 2008, pp.69-81
guage. Socrates was tried orally in 399 B.C. and Jesus in 30 A.D.15 In more modern times, oral trials have been the staple in common law legal systems. In England, the oral trial system has been around for centuries, and as an aggressive colonial force, England spread its legal system throughout the world, to include the United States, Canada, Australia and India.6 Yet in each country utilizing oral testimony to resolve legal disputes, there are significant differences. In the United States for example, one is guaranteed the right to a trial by a jury of one’s peers by the Constitution7, globally a relatively uncommon legal practice.8 Until recently, one could generally associate the oral trial addition with common law jurisdictions, as opposed to civil law or socialist law jurisdictions.9 The primary distinctions between the common law and civil law can be summarized as follows: In a civil law nation, “the traditional notion about criminal procedure is a set of rules that defines the different roles and means to achieve a simple goal, the truth. The detailed rules are part of a code that is the dominant authority to regulate the proceedings.” “The civil law tradition is statute-bound: legislatures draft statutes, rules, and directives setting forth the law in advance. Courts apply and interpret the law, but do not create it.” On the other hand, in a common law nation, the system emphasizes case law focusing on individual cases. Within the common law tradition, “courts fashion the law on a case-by-case basis, building on precedent to fill the gaps over time.”10 Yet oral trials are not entirely new in civil law systems. Peru, for example, introduced the oral trial as early as 1930.11 In 1999 Bolivia enacted a new criminal procedure code, among other things “introducing jury trials, oral arguments and other elements characteristic of the common law system.”12 In recent years, there has been a virtual storm of legal reform in Latin American countries, and Mexico is no exception. First, there is no ostensible reason that one must assume that elements of one legal system, such as the oral trial of the common law prevalent in accusatorial model, could not be beneficial to another legal system, such as the civil law
5. For a very interesting and entertaining summary of the world’s most famous trials, see Linder, Douglas O., Famous Trials, University of Missouri-Kansas City School of Law (2006). Available at: www.law.umkc.edu/faculty/projects/ ftrials/ftrials.htm. Among the more interesting are the trials of Galileo (1663), Boston Massacre (1770), Mutiny on the Bounty Court-Martial (1772), Earp (O.K. Corral) trial (1881), Lizzie Borden Trial (1893), Black Socks trial (1921), Lenny Bruce (1964), My Lai Courts Martial (1970), Charles Manson trial (1970-71), John Hinckley Jr. trial (1982), McMartin Preschool trial (1987-90), LAPD (King beating) trial (1992), Oklahoma City bombing trial (1997), among many others. (Last visited, August 31, 2006.) 6. In addition to the above, the common law constitutes the basis of the legal systems of the Republic of Ireland, Australia, New Zealand, South Africa, India, Malaysia, Brunei, Pakistan, Singapore, Hong Kong, as well as many other English-speaking countries. (Notably, the local legal systems of the Canadian province of Quebec and the U.S. state of Louisiana use systems modeled on French civil law). 7. The Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed…” The Seventh Amendment states that, “In suits at common law…the right of trial by jury shall be preserved…” 8. The selection process for juries, for example, varies greatly among jurisdictions employing jury trials, as does the number of jurors and other formalities. See also, e.g., fn. 13, supra. 9. Legal systems are often classified as being either common law, civil law, or socialist in their structure, history and practice, with Latin American legal systems being historically civil law systems based on European models. See, e.g., Tetely, William, Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified), 60 LA. L.Rev. 677, 682 (2000). 10. Barry, Yacine, et al., “Judicial Reform of Criminal Justice in Latin America,” Office of the Assistant Secretary for Legal Affairs (2001), available at: www.oas.org/legal/english/osla/judicial.reform.doc., (footnotes omitted) citing Rodrigo, Carlos de la Barra Cousino, Adversarial vs. Inquisitorial Systems: The Rule of Law and Prospects for Criminal Procedure Reform in Chile, 5 Sw.J.L & Trade Am. 323 340 (1998) (footnotes omitted). See also Cortese, Alfred W., et al., Civil Justice Reform in America: A Question of Parity with our International Rivals, 13 U. Pa. J. Int´l Bus. L. (1992). 11. Hammergre, Linn A., The Politics of Justice and Justice Reform in Latin America: The Peruvian Case in Comparative Perspective, 113-114 (Westview Press, 1998) cited in Barry, supra, at 7. 12. 12. Barry, et al., supra, at 7.
Revista de investigacion SIMIYA de la Universidad La Salle Chihuahua