MEXICAN CRIMINAL PROCEDURE

AN OVERVIEW OF A COMPLEX AND CONTROVERSAL SUBJECT

INQUISATORIAL VS. ACCUSATORIAL

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Inquisitorial is a system where the judge is the prosecutor, the proceeding is secret and the

accused must answer questions that, at times, are obtained by moral or fiscal torture and offensive searching and inappropriate

questioning.

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ACCUSATORIAL

Accusatorial is a system that has a public accusation, a public trial, and the judge is not the prosecutor, but an independent decision maker.

INQUISATORIAL? OR ACCUSATORIAL? Black’s Legal Dictionary, 8th Ed, p. 58.

There is no precise understanding, however, of the institutions and arrangements denoted by these expressions. Citing 1 Ency. Of Crime and Justice, pp 24-25, Sanford H. Kadish, Ed. 1983.

CrimeComplaint

filed&

Detention

Preparatory Declaration

Arrest Warrant

& Detention

Constitutional Time Period

Judicial Investigation and evidence

ConclusionsJudgment

& Final Hearing

Penalty

PreliminaryInvestigationProsecutor

In Presence of a Judge

OVERVIEW--Primera Instancia

OVERVIEW--Segunda Instancia

Filing the Appeal

Introduction of Evidence

&Hearing

Judgment

Amparo

Recurso de apelacion

Recurso de revocacion

Recurso de de denegada apelacion

Recurso de queja

COMMISSION OF THE CRIME

Flagrante delito: when the individual is arrested at the time he is committing and offense.Quasi flagrante delito: when the individual is arrested immediately after the commission of an offense

NOTICE OF THE CRIME

DENUNCIA QUERELLA

Preliminary Inquiry by Public Prosecutor—AVERIGUACION PREVIA The preliminary inquiry is supervised by the

Public Prosecutor, who is entrusted with investigating the supposed crime to establish corpus delicti and probable responsibility with the goal of either instigating criminal proceedings or abandoning the case.

The purpose of the investigation is to investigate the facts and to legally process the evidence gathered during the inquiry

INVESTIGATION GOALS Corpus delicti: The group of objective or external

elements that constitute the material elements set forth in the legal description of the offence specifically set forth by criminal law.

Probable guilt: “The authority must confirm whether there exists no lawful justification in favor of the suspect and that there is sufficient information to prove the suspect’s probable guilt.” Probable guilt can only be established if: 1. suspect acts with criminal intent (dolo) or criminal negligence (culpa). 2. There is no evidence that the defendant acted out of self-defense or under a state of compulsion (estado de necesidad) or was exercising a right or performing a duty or obligation

PRIMERA INSTANCIA

Consignacion (similar to arraignment) WITHIN 72 HOURS AFTER A PERSON IS ARRESTED THE JUDGE MUST DECIDE IF THE CHARGES STAND OR WHETHER THERE IS NOT ENOUGH EVIDENCE TO PROCEED WITH THE INSTRUCCION STAGE.

Requirements for an Arrest Warrant-- Auto de Aprehension Formal complaint Complaint must make reference to a crime

that has a prison term The corpus delicti must be established The available facts must indicate that there is

probable cause The Public Prosecutor must request the

detention

The Constitutional Time Period An individual that has been arrested must appear

before the a judge within 72 hours of his arrest (consignacion) to determine the nature of the detention by one of the following steps: The judge formalizes the detention of the accused The judge order the matter to proceed to the evidenary

stage The judge finds the evidence insufficient and releases the

accused The judge finds the facts to lack one or more elements of

the crime charged and releases the accused and the file (expediente) is returned to the Public Prosecutor (con reservas de ley)

The Commitment OrderAuto de Formal Prision The judge decides whether or not to commit the

accused to pre-trial custody (prision preventiva) by means of an order that is substantiated and reasoned in law

Requirements: Preliminary declaration of the accused Elements of the offense and corpus delicit are established The offense carries a prison term The responsibility of the accused is substantiated There are no mitigating grounds

INSTRUCCION: EVIDENCE AND EVALUATION Preinstruccion Instruccion (Evidentiary stage) Juicio Final review of evidence, closing

arguments and final judgment. Conclusiones. Prosecution and the defense

offer their respective conclusions or arguments regarding law and the facts.

INSTRUCCION, CONT.

Alegatos (final arguments of the parties) Sentencia of the Primera Instancia