Week 6: Post-Reform Evidence Law and Practice
By Al Macina
Chile’s Código Procesal Penal (Criminal Procedure Code; CPP) instituted through the recent reforma dictates the procedure and means of proof in criminal trials. The code provides only general guidelines regarding evidence, and broadly permits the introduction of all kinds of proof through any means, though with unprecedented controls on admissibility.
Admissibility of proof is now based on debate between the parties at a pre-trial hearing. The juzgado de la garantía, essentially a magistrate judge, decides final admissibility based on her determination of legality, relevance and sufficiency in light of the parties’ arguments. Art. 276 of the CPP sets forth the standards for exclusion of evidence, in a word, proof that is manifestly irrelevant. The magistrate can also reduce the number of witnesses or documents where they would unreasonably delay trial and exclude proof gained through actions previously declared null or gained in violation of fundamental rights. The code is silent as to treatment of proof that would be considered too prejudicial to the defendant, perhaps based on a belief that trial judges are above the influence of prejudicial elements of otherwise relevant proof (unlike the presumption about juries).
The juzgado’s title is significant, as la garantía refers to the guarantee of due process and essential rights for all defendants, a feature non-existent in substance prior to the reform. The juzgado/magistrate oversees criminal process from initial detention up to and including the pre-trial hearing at which the body of evidence offered by the parties is filtered. At trial, three judges (distinct from the juzgado) sit to determine legal innocence or guilt without having seen the evidence advanced at the pre-trial hearing, much as our jury considers only the evidence presented at trial.
The CPP’s generality on evidence rules gives discretion to the magistrate to create more specific rules for admissibility. Generality forces argument at hearings or in trial every time a question of evidence propriety arises, but its flexibility permits development of the evidence regime. The two-year old reforma put forth the new articles regarding evidence; indeed, the new CPP that contains them is the embodiment of the reform. In general, the former justice system controlled the production of evidence only to the extent the criminal law prevented a judicial actor from acquiring it. In the words of my supervising attorney, “if evidence got in (without violating criminal law), the fact was proved, and if not, it was not proved.” Based on this assertion, basic controls on judges’ determination of reliability of evidence (such a maxim to use “logic,” for instance) embodied in the new code seem incredible (Art. 297).
Yet, concepts like “full proof” (plena prueba) also have survived the clean sweep of the reform, at least in the minds of some. For example, when two witnesses’ testimony fully matched as to the relevant facts and circumstances, these facts are considered proven (Art. 459 of the former Código Procedimiento Penal (14th ed., 1996)). Also, where two or more reports by experts came to the same conclusion without contradiction, their concordant opinions could be viewed as plain proof (Art. 472 of the above former code). Though these rules have been eliminated, their effect lives on. Of course, current code indicates that trial judges sit to evaluate the reliability of evidence, providing a check that these concepts are not followed blindly. But among the many changes brought about by the reforma, like the addition of a public defender’s office, it did not eliminate then-existing judicial actors, i.e. sitting Chilean judges. Hence pre-reform judicial mentality remains, as where some judges continue to find probative value in evidence that has been treated carelessly. Such neglect can eliminate a proper chain of custody of the proof up to presentation at court, and yet may be admitted against a defendant.
The reforma removed the role of prosecutor from the judge and transferred the evidence advocacy to the parties under impartial judicial oversight. Though an open season on evidence constrained only under penal law has given way to the consideration of the facts based on more reliable proof, the evidence law remains new in Chile and will develop over time in the hands of its respective judges, both old and new.
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