By: Ralph G. Smith and Daniel Smith

The things that most Americans know about the civil law, if they have any knowledge of it at all, is that it is an inquisitorial system, rather than adversarial, and that juries are non-existent. They also firmly believe that under the civil law system a defendant is presumed to be guilty until proven innocent. These observations are totally correct as to some countries, partially correct as to others, and wrong as to the presumption of guilt. In some countries oral, public proceedings which are to some extent adversarial do take place, generally as the final hearing before judgment is rendered. In a number of countries juries, or something like them, are in use.

Trials, including criminal trials, are generally not concentrated public events in Latin American countries. The trial is, rather, a process of evidence collection, which is conducted by a judge, and which culminates in a decision by (usually) another judge, and often solely on the basis of a written record. The following outline will, for the most part, relate what occurs in Guatemala, but the proceedings in other civil law countries will be very similar.

A criminal trial is ordinarily comprised of three phases: the preliminary phase, the investigative phase, and the decisional or trial phase.

At the preliminary phase, the primeras diligencias, the basic bare facts and allegations are received and preliminarily investigated by a judge, usually the justice of the peace, the juez de paz. The juez de paz does not sit in his office and simply receive the evidence. He makes “house calls.” He is supposed to go out and look at the body, if it is a homicide, round up witnesses and generally determine that something contrary to law has occurred. Part of the United States aid to EI Salvador has consisted of funds to purchase motorbikes and bicycles for the justices of the peace, because their duties require on-the-scene investigation. In Guatemala, the primeras diligencias must be completed within three days. If the juez de paz determines that a crime has probably been committed, he sends the file up to a higher-level judge, usually called the “first instance” judge, the juez de primera instancia. This judge is the equivalent of a Superior Court or District Court judge.

Upon receiving the file, the first instance judge conducts what is known as the instrucción or sumario. In this context, these are legal terms which connote an investigation, rather than “instruction”. At this time, the judge takes charge of the investigation, calling in the accused and the witnesses and taking statements. In Guatemala the actual interrogation of witnesses is usually conducted by an oficial, who is roughly equivalent to a bailiff, and may be a law student. The judge may have a number of oficiales, up to six or seven. The oficial sits before a typewriter and asks questions and types in the answers as they are given. The questions are usually leading, and are far from forceful cross-examination.

The judge receives the statements or declarations from the oficial, but, at least in Guatemala, he may never see the witness himself. The various statements and other materials are reviewed by the judge and placed in a file which grows larger as the investigation progresses. In Guatemala, the instrucción is by law secret, and must be completed within 15 days. At that point, the juez de instrucción makes a determination roughly equivalent to that made by a common law judge or justice of the peace at a preliminary hearing. That is, he decides whether the corpus delicti has been established, and whether there is sufficient evidence to merit consideration of the case by the next judge up the line. If so, the case goes to the juez de sentencia. This may sound as if the accused has already been found guilty, but this is not the case. The sentencia phase is not a “sentencing”, but rather the decisional phase. In EI Salvador this is known as the plenario. The sentencia judge, who in Guatemala is also a first instance judge, must go through the case file and decide whether further investigation is necessary. If so, he conducts such further investigation, again through his oficiales, until he is satisfied that all the evidence is in. Witnesses may sometimes be called at this stage to reaffirm their testimony, or new witnesses may be called. The final hearing is the debate, or argument, which is usually in written form. The judge then decides the case based almost entirely on the written record. If the accused is found guilty, the judge proceeds with the imposition of the penalty.

After the trial, there may be an appeal this is almost automatic in Guatemala. The record will go to the corte de apelación, the court of appeals, which is also referred to as the second instance court. The corte de apelación is not limited to deciding only legal questions. It may go over the whole record and even take additional evidence. There is also available the recurso de casación, the cassation appeal, which is a much more formal proceeding before the Supreme Court, and which is limited to consideration of technical or legal questions, much as in an appeal in the common law system.

Common law lawyers reading the above may be scratching their heads and asking “Where is the prosecutor in all this? And where is defense counsel?” The fact is that in many countries, the fiscal, the equivalent of the prosecutor, is rarely seen in court, except perhaps at the final argument of the case. He is charged with “intervening” to protect the interests of the state and the public, but his appearance is usually a perfunctory “desk-top intervention” (intervención de escritorio) in which he merely tells the instruction judge, in effect, that everything looks fine to him, or perhaps suggests some line of investigation that the judge might pursue. Since we are dealing with an inquisitorial rather than adversarial system, the judge is not only an active participant in the investigation and prosecution; he is the participant. The position of the fiscal is clearly auxiliary. Defense counsels are limited to much the same type of intervention in behalf of their clients. They may make requests to the judge as to the course and scope of the investigation, and even suggest lines of questioning, but their only real opportunity to exercise their power of persuasion comes at the time of the debate, and this is, as stated above, usually in writing. Very few lawyers, in fact, make a career of criminal defense.

The above comments as to the role of the fiscal do not necessarily hold true in countries other than Guatemala. The Ministerial Public and its fiscals have roles of greater or lesser importance depending on the laws of the country involved. While the basic procedures in all civil law jurisdictions are similar, some, such as Panama, give the fiscal a much more important position. In most civil law countries, however, the fact remains that both the fiscal and the defense attorney, if any, are more or less limited to suggesting to the instruction judge what they believe should be done, rather than taking the leading role. They can request that certain persons be called upon as witnesses, and they can suggest questions for the judge to put to these witnesses, but they have very little opportunity for personal interrogation.

The police, in Guatemala, Honduras and El Salvador, at least, keep a relatively low profile during the judicial investigation of a crime. They are, by and large, untrained, poorly educated, underpaid and frequently corrupt. They are distrusted by the populace, often with good reason. They are, in most Latin American countries, completely unable to perform the type of investigatory activity common in the United States. They keep the order in their own fashion, and arrest the perpetrators of crimes, but usually that is the extent of their participation. They turn the matter over to the juez de paz, and he takes it from there. In Guatemala a policeman is paid the equivalent of about $ 80.00 per month, which is about what a gardener or housemaid earns, and the housemaid gets her meals and lodging as part of her compensation. The U.S. government has promoted and paid for training programs to teach the police in these countries something about the rudiments of criminal investigation, but very few of them have been able to take advantage of the opportunity.

A notable exception to these comments regarding the police is Costa Rica. The judicial branch there has its own police force, the Organism de Investigaci6n Judicial, which does have forensic laboratories.