Criminal Justice Reform in Latin America: Is the Adversarial System the Best

Alternative? A Comparative Analysis

Roberto Fernández Medina

Mphil University of Cambridge

Licenciado en Derecho Universidad de Sonora

robertofernandezm@yahoo.com

INTRODUCTION

In the field of comparative criminal procedure, recent Latin American reform movements appear

as the largest and most notable event in the 20th century. Of 26 states in Latin America, 19 are

in transition from an inquisitorial to an oral-adversarial system of criminal procedure. For

instance, between 1998-2001 Bolivia, Chile, Paraguay, Ecuador and Venezuela undertook deep

structural reform of their criminal justice systems. Technically and financially assisted by

international organisations, the endeavour included radical shifts in both administrative and

legal procedure. The administrative changes in the judiciary aimed to reinforce its independence

and make it more efficient. The legal reforms, on the other hand, implied the replacement of a

written-inquisitorial system for an oral-adversarial system. According to the redactors and

scholars who encouraged and led this reform project, the goal is to build fairer trials, eradicate

the problems of abuse of power and reduce the backlog of cases delayed. It was contended

that in order to achieve those goals it was necessary to entirely abandon the inquisitorial

system inherited from Spain.

There are several questions that arise from such a perspective. Why do South Americans

believe that the written-inquisitorial written system had to be entirely replaced? Why do they

believe that a radical shift towards the adversarial system will contribute to eliminate those

problems? In principle, scholars and reformers have quoted the existence of two dominant

theoretical perspectives within the literature: the “inquisitorial” and “adversarial” approaches.

While inquisitorial model is perceived as bad, the adversarial is perceived as good. As I shall

explain below, the reformers represent a dichotomy of adversarial and inquisitorial models as

bad and good systems. While the adversarial system is seen as an ideal system, the inquisitorial

is represented as the origin of all problems.

The aim of this essay is to explore some of the disadvantages of the adversarial system and to

reflect upon the problems that South Americans might face. It is not the goal to determine

whether one system is superior to another. Instead, I believe that recognition of disadvantages

and lessons learned of a given system are indispensable in order for lawmakers to find a

balance and for devising the mechanisms that are best suitable for a country’s needs.

Why study South American reforms

The main motivation for undertaking this research is my concern on whether Mexico should

follow South Americans path in replacing the written-inquisitorial proceedings for an oral-

adversarial system. Mexico has been recently criticised by several South American scholars on

the grounds that it has only introduced partial reforms and it has not considered the possibility

to undertake a reform endeavour along South American countries. It is assumed that Mexico is

falling behind in Latin American reform movements since it has not abandoned entirely the

written-inquisitorial tradition transplanted from Spain and France, particularly the written

mechanism to present the evidence at trial. In a crucial moment of political transition, Mexico is

certainly seeking new mechanisms to improve the quality of justice by providing quicker and

more accurate decisions while reducing the backlog of cases. South American reforms precisely

aim to target those aspects. Unlike the new Chilean code, however, Mexico still keeps the

written-inquisitorial system of presenting evidence collected at pre-trial stages in a dossier.

Thus judges base their decisions on the basis of the dossier oftentimes without seeing the faces

of the defendant and witnesses. This mechanism has been often called as “Trials without

Faces”.

One of the most significant changes under the new Chilean code is precisely in the nature of

trial. In the new code, the defendant and prosecutor are given a greater role while the court’s

role is dramatically reduced. As in the adversarial system, the new Chilean code places central

importance on the trial as the means by which the parties present and debate the evidence that

they have discovered. By contrast, in the former written-inquisitorial systems the trial became a

bureaucratic step in the process since the determinant evidence has been gathered in the

dossier during previous stages. The new code requires that evidence be presented orally rather

than through written summaries as under the previous code. In order to accomplish that goal,

strict exclusionary rules of evidence have been erected so that courts do not use written

statements and hearsay evidence collected at pre-trial stages for evidentiary purposes. Instead,

courts will have to base their decisions only on the evidence presented during the trial stage.

The purpose of this shift is have the judges receive a fresh impression and that the evidence is

introduced into trial orally so that all participants are aware of it and are in the position to

respond. In other words, courts in the new system are required to go to trial with “a virgin

mind” and to find the truth as a result of partisan struggle as in adversarial systems. These

exclusionary rules have been called in continental Europe as the principles of Orality and

Immediacy. In addition, in an ambitious attempt to protect defendants against abuse of power,

the new Chilean code prescribes that the police will not be even permitted to interrogate the

defendant in the aftermath of crime unless the defence attorney is present.

The key question is whether Mexico is prepared to erect such exclusionary rules and whether

they are indispensable for improving the quality of justice. In my view, it is not clear how the

application of the so-called principles of oral hearing and immediacy might contribute to build

fairer trials while accelerating the proceedings and reducing the backlog of cases delayed. It is

important to note that Mexico as South Americans are economically poor countries, habituated

to carry out proceedings in writing for centuries. Thus, it is not clear how a radical shift will

impact on the habits and behaviours of the actors in the processes. As I shall explain in chapter

three, while such exclusionary rules have advantages, they might also complicate the discovery

of truth and make trials more complex and time-consuming. So far, no empirical evidence has

been quoted to support the proposition that the adoption of an oral-adversarial system, in a

culture accustomed to writing procedures, will result in fairer, quicker and more efficient trials.

As it happens, the reforms are largely based on models and academic ideology.

In chapter one, I will address a general overview of the origins and implications of South

American reform movements. In principle, I shall quote several scholars’ views towards the

reforms in different countries. We will see the ideas through which they considered

indispensable to entirely replace the inquisitorial system inherited from Spain for an oral-

adversarial system. I will criticise the fact that South American scholars represent a dichotomy

of adversarial and inquisitorial systems as bad and good systems, and how the adversarial

system is erroneously seen as an ideal system of criminal procedure.

In chapter two I shall explain how both adversarial and inquisitorial system has been criticised

by western scholars. I will address the advantages and disadvantages of both systems

particularly in the methods they use to discover the truth. The aim of this chapter is to show

how both systems have substantial problems that should be taken into account when doing

transplants from one country to another.

In chapter three, I will focus the analysis on the trial stage. I will review the literature regarding

the principles of Orality and immediacy. We will see how concerns are expressed in that these

exclusionary rules may result in the loss of valuable information since highly probative evidence

is excluded. Likewise, I shall explain how inconsistent findings have been reported upon the

impact of oral hearing and physical appearance in court decisions. In chapter five we will see

how a quite identical reform endeavour (Italian reform of 1989), has not fulfilled the goals of

accelerating the process and reducing the backlog of cases delayed by the adoption of an oral-

adversarial system.

It is important to emphasise that is not the aim of this essay to imply that South American

reforms are pre-destined to fail and that Mexico should not undertake such a reform. On the

contrary, the aim is to raise questions undressed and encourage further research so that the

problems can be avoided in future reform endeavours.

This work is exclusively concerned with contested trials in which defendants plead not guilty.

For more information: robertofernandezm@yahoo.com