Revista De Investigación Simiyá ULSA Chihuahua, Año I, Número 0, Enero 2008, pp.69-81
investigation and reviews documents and transcripts of witness statements.24 In live testimony, however, the trier of fact is able to observe not only the actual testimony of the witness, but also the witness’s demeanor.25 Indeed, that it is much easier to tell if a witness is lying than if a document is lying. Furthermore, during live testimony an advocate has a better opportunity to explore potential inconsistencies in the witness’s testimony and explore ambiguities. The biggest criticism, however, of the oral trial system in countries using juries, is that juries are fickle and are often persuaded by emotion and rhetoric rather than facts and law. Indeed, jury consultants who are trained in psychology and demographics, are often employed by lawyers to help them select a jury predisposed to rule in favor of their clients.26 But that is a problem most Latin American countries will not have to contend with. To be sure, oral criminal trials in themselves are not a cure-all for problems of Latin American jurisprudence. One Mexico City judge, Pablo Picazo Fosado, said, “Our system has a lot of laws, but I don’t think oral trials will solve them.”27 Additionally, the infrastructure of the courtroom for oral trials will necessarily have to undergo significant change to accommodate the oral trial.28 While that may be true, the general consensus among both legal practitioners and the public at large is that the oral criminal trial is one step in the right direction for legal reform in Mexico. “The justice system [in Mexico] just isn’t working,” said one defense attorney, “It’s slow, and there aren’t many chances to defend your client.”29 And inspired by legal changes in other Latin American countries such as Chile, Bolivia and Costa Rica,30 the oral trial appears to be a trend that will not likely dissipate soon. Law students appear to be embracing the change more than current lawyers. The statement of a law student from Fray Bartolemé de las Casas University, Ana Laura Vera Sarmiento, is typical: “In [the oral trial], you have to pay attention to every single detail and be able to respond right away[;] [t]he oral system makes lawyers better, I’m convinced of it.”31 So far, in the states implementing oral trials in criminal cases, the results have been encouraging. Consider the following: In February , Mexico’s first oral [criminal] trial took place in Montemorelos [Nuevo León]. A judge sentenced defendant Alejandro Santana to three years in prison after hearing witnesses testify over two days. Gathering all that testimony and weighing the arguments could have taken three months to a year under the old system.32 Significantly, Mexico (as well as other Latin American countries) has the unique opportunity of selecting the most advantageous portions of the oral trial system while eschewing those elements of the oral trial which are either incompatible or impractical to replace with the current system. As a case-in-point, neither Mexico nor Chihuahua has attempted to add a jury to the oral trial. Doing so would not only add millions of dollars in additional infrastructure costs,33 but also add a foreign and complex element of emotive persuasion not endemic to the old inquisitorial system of justice.34 Additionally, the complex rules of evidence in oral trials in the United States which have evolved over hundreds of years would be incompatible, if not nonsensical, to the practicing trial lawyer in Mexico. Thus, the rules of evidence and courtroom conduct by attorneys are much simpler and direct that one might expect (see Section V below). 24. See, e.g., fn. 13, infra. 25. The term “trier of fact” denotes the person or persons who determine the facts of the case. For example, in a “bench trial” (oral trial presided over solely by a judge or judges) the judge is the trier of fact, whereas in a jury trial, twelve citizens decide, after hearing all of the witness testimony and the arguments of the lawyers, what the true facts of the case are. 26. See, e.g., Post, Leonard, “Splashy Trials Keep Jury Consultants Busy,” The National Law Journal (2004), available at: www.doar.com/marketing/web/nljjuryresearch.pdf (last visited September 17, 2006). 27. Quoted in Hawley, Chris, “Mexico puts U.S.-style court on Trial,” (2005), available at www.azcentral.com/specials/ special03/articles/0425trials25.html (last visited September 11, 2006). 28. “Courthouses would have to be completely rebuilt, stenographers trained, tape-recording equipment purchased.” Id. at 2. 29. Ibid., quoting defense attorney Alejandro Cortés Pacanins. 30. Ibid. 31. Id., at 3. 32. Id., at 2. 33. For example, a twelve-person jury requires a separate “box,” among other things, to seat the jurors, in addition to a deliberation room and a larger courtroom to seat all of the potential jurors called for service to hear a particular case. 34. Typically, jurors have no or little prior knowledge of the law affecting the case, and although the judge instructs the jury as to what the law is, it is commonly believed that jurors are more susceptible to powerful emotional arguments from trial lawyers than a judge might be.
Revista de investigacion SIMIYA de la Universidad La Salle Chihuahua