By: Ralph G. Smith and Daniel Smith
A basic procedure during the investigative phase is the formal questioning of the accused. In Honduras, this is known as the indagatoria. In most, if not all, civil law jurisdictions, the accused now has the right to remain silent even at this proceeding, but this right is rarely exercised, since silence is considered as being evidence of guilt. The right to remain silent is a part of modern reforms, and was not a traditional right under the civil law system. Even if the accused is represented by counsel, he is usually advised to respond to questioning, but not under oath.
Because of this tradition requiring a defendant to speak, a Latin American defendant in the United States may feel compelled to make a statement when charged with an offense, even though ad vised that he need not do so.
The accused is entitled to representation of counsel in most civil law countries. In EI Salvador a defendant is not even permitted to represent himself unless he is a licensed attorney. If he does not name a defender, one is appointed for him automatically. There is a public defender section of the prosecutor’s office for this purpose. In Guatemala, much of the defense of indigents is taken over by law students, who must complete a number (six, I believe) of defenses under the sponsorship of a licensed practitioner in order to graduate. Since there are said to be some 8000 law students in the University of San Carlos alone, competition for representation of defendants is very evident. It is even rumored that some court personnel make extra money by accepting “gifts” in return for arranging appointments as defense counsel.
In most Latin American countries the public defender system exists in name only, although some, such as Costa Rica, have well-organized working systems. In Quito, Ecuador, there are only two public defenders, and a portion of their time is spent handling civil matters. In Honduras, under an AID program, has funded an expansion of the public defender system. Its attorneys are dedicated individuals, but lack of funds for transportation, office equipment and even paper, forces them to operate under very adverse conditions.
Contrary to the belief of many common law lawyers, the defendant in a civil law jurisdiction is not presumed to be guilty until he proves himself innocent. In EI Salvador the accused has the right “to be considered innocent as long as his guilt is not declared by judgment.” It should be noted, however, that there is no requirement that he be found guilty beyond a reasonable doubt. The criminal standard of proof in civil law jurisdictions is roughly equivalent to that of a preponderance of the evidence. In Ecuador, the law states that “every person is presumed to be innocent so long as he has not been declared guilty by a final judgment.” However, another section of the code provides that “all criminal acts are presumed to be conscious and voluntary unless the contrary be proven.” So the code giveth, and the code taketh away.