Southwestern Commentator

Issue date: 9/1/07 Section: Politics

    Mexico is learning from international experiences – at least as it relates to the law. It has taken steps to transform itself from an inquisitorial to an adversarial criminal justice system similar to that of the United States.
    Mexico’s current criminal justice structure is prescribed by a set of codes, without considering previous cases. Influenced primarily by the French legal system, cases are determined solely through submission of documents. These written statements trump oral testimony. Witnesses are not cross-examined. The presumption of guilt prevails at all times, leaving the burden of proof on the defendants who often have limited resources to use in proving their innocence.
    Prosecutors investigate and judge the evidence
(even if illegally obtained through torture) and essentially have ultimate power over the outcome of the case. The defense, on the other hand, has limited access to the evidence. The system does not permit parties to debate the evidence or hear from opposing witnesses.
    Judges under Mexico’s inquisitorial system rarely attend hearings. Instead, they remain in offices where they read the files of the “trials.” Because the system replaces oral arguments with reading, nearly 20 hearings take place at the same time in the average criminal court every day.
    The result of this inquisitorial justice system is the tremendous amount of paperwork that many argue impedes justice.
    However, Mexico is attempting to reform its system to one that resembles that of the U.S. Influenced primarily by English Common Law where stare decisis applies, America maintains an adversarial system. Cases are determined
through a public trial before a judge and/or jury where there is oral testimony and cross-examination, all of which have bearing on the outcome of the trial.
    It has not only oral trials but also alternative solutions for disputes providing speed in justice and saving not only human but economic resources. And of course, there is the presumption of innocence in all criminal cases and the right to have a defense attorney.
    In the U.S. criminal justice system, the police investigate the crime, but what they find is not evidence until the parties have debated it and the judge has ruled to admit or exclude it.
    When the evidence is debated in hearings by the parties, only relevant and legally obtained evidence is admitted, and the defendant has all access to the evidence.
    Recent statistics may indicate why Mexico is pushing to change their current system. The documentary El Tunel, by Roberto Hernandez, states that 99 percent of the crimes committed in Mexico are not punished.
    This is not the first time Mexico has attempted to adopt an adversarial system. In 1917, then-President Venustiano
Carranza stated that Mexico needed an adversarial system to provide effective justice. The Legislature agreed, and in Article 21 of the new Federal Constitution of 1917, they established
the institution of the Ministerio Publico (Prosecutor’s Office). The intent was to remove the faculty of investigation from the judge and give it to the new institution.
    However, the intent was misunderstood and the Ministerio Publico twisted its objective. The newly established institution decided it needed only to obtain enough evidence of a crime to convince itself and would prosecute and convict based solely on this information.
    It was not until 2004, when Former Mexican President Vicente Fox presented a reform proposal, that Mexico’s
criminal justice system began to shift to an American-style system.
    Since then, several changes have taken place. The Mexican state of Nuevo Leon instituted oral trials in 2004, followed by Estado de Mexico in 2006. Chihuahua began operating a complete adversarial system in 2007. Several other Mexican states are moving toward this adversarial structure, including Oaxaca, Veracruz (where state legislation for reform was approved in July 2007), Jalisco, Yucatan, Sonora, Coahuila, Zacatecas, Morelos, Aguascalientes, and Nayarit.
    While the reforms in Mexican states are significant, more change is needed to establish a successful adversarial system. But there is hope. More and more Mexicans are becoming involved in the process. They are analyzing the experiences of other nations with adversarial systems and taking their findings back home to help shape the new system and to teach the attorneys, judges, and law students who will manage it.
Cristal Gonzalez is an L.L.M. student visiting from Mexico and may be reached at obcris@yahoo.com.

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