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January 2020
REGION: Western Hemisphere

In “Adversarial Criminal Justice in Latin America: Comparative Analysis and Proposals,” Leonel González and Marco Fandiño discuss various procedures, methods of reform, and results of the gradual implementation of an adversarial criminal justice system in Latin American countries. The authors provide an overview of the evolution of adversarial procedures regionally involving greater establishment of oral hearings, granting prosecutors greater control over criminal action and prosecutions, institutional and organizational reforms, and increasing sophistication of the system. The authors further note that several counter-reforms have challenged the transition to an adversarial system, including the expanding use of pre-trial detention in Bolivia, Mexico, Paraguay, and Venezuela in the 2000s; retraction of the use of the jury trial in Bolivia, Venezuela, and Nicaragua; and increased use of the oral trial in Bolivia, Colombia, and Venezuela.

The authors then provide an overview of the use of oral procedures, the quality of litigation, trial by jury, the protection of the guarantee system, and the organization and operation of institutions. Although oral procedures were introduced at the trial phase of litigation, the authors argue that oral procedures remain weak in preliminary stages of trial. The authors also identify three types of adversarial proceedings in Latin America: the classic adversarial proceeding (involving preliminary hearings that address jurisdictional matters and use oral procedures as a general rule), the bureaucratic adversarial process (with mixed inquisitorial characteristics), and the written adversarial process (in which most decisions in the preliminary stage are in writing).

The authors further discuss the quality of litigation, specifically issues pertaining to arraignments, formalization of investigation hearings, hearings on conditions of release, alternative outcome hearings, preliminary hearings, and oral trial hearings. Regarding jury trials, the authors contend that including lay jurors in tribunals will be a significant improvement for substantiation of trial. Finally, the authors discussed regional differences in functionality of the protection of the guarantee system (i.e., tools to protect citizens from abuse of power) and notable shifts in the organization and operation of all criminal justice systems due to the transition to adversarial methods.

The authors then offer several recommendations for improvement regarding oral procedures, the work agenda of criminal justice system institutions, and public policies for establishing the adversarial system.

Oral Procedures

Oral procedures allow for a discussion to take place among all parties rather than mechanical and secretive sentencing in an inquisitorial model, which adds transparency and trust in the system. Oral procedures also allow conflict to be exteriorized from the judiciary, which can open lanes of discussion between parties to resolve disputes. The use of oral procedures has been introduced into some systems, but the authors found that their use needed to be strengthened in preliminary stages of trials rather than exclusively in the trial stage. Specifically, the authors propose the formation of a Latin American Program for Improving the Use of Oral Procedures and contend that the use of oral procedures can be improved in the following areas:

  • The guarantee of the fact. The guarantee of the fact is a formal stage where the prosecutor informs a defendant of the substance of the charges. The authors contend that this procedure will allow the defendant an opportunity to mount a defense strategy and be better prepared before appearing at court, thereby strengthening the trust in the system.
  • Agreement hearings. Agreement hearings are oral hearings for the formalization of agreements between the parties. Agreement hearings can be a privileged space for discussion of causes of conflict and for generating various options for a resolution. The authors assert that directed discussion can lead to a more just resolution of the conflict.
  • Conditions of release. Conditions of release hearings have not provided a sufficient discussion of the requirements and procedures necessary to impose a condition of release. The authors recommend that conditions of release requirements should be outlined and highlighted during an oral procedure to promote the necessary quality of discussion about the conditions of release.
  • Preliminary hearings. Preliminary hearings present a last chance to reach an agreement, receive crucial details of charges, and to prepare for trial. The authors argue that imbedding oral procedures into these hearings will improve the justice system’s efficiency, control the quality of the information in the process, and deliberate the admissibility and exclusion of evidence.

The Work Agenda of Criminal Justice Institutions

Regionally, the progress countries have made towards institutional changes towards adversarial models have been varied. The authors argue for increased prosecutorial independence. To aid in this reform, key changes in the structure of police functions are needed. The authors urge structuring the police under civilian, rather than military, control to develop transparency, monitoring, and oversight.

Institutional strengthening and budgetary parity with other criminal justice system agencies is also needed. Public defense services should be specialized to provide services to migrants, members of indigenous groups, inmates, women, older adults, and youth offenders. Many of these services still form part of the executive or judiciary branches. This proposal would reduce the parities in the judicial system and allow public defenders to operate without outside pressures pushing their agendas.

Public Policies for Establishing the Adversarial System

Criminalization, invisibility, discrimination, and violence against women—including LGBTQ women—has been discussed in academic circles and addressed through international human rights instruments such as the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). However, the authors recommend that increased attention be given to exploring these issues through a criminal procedure lens. The authors argue that a gender perspective should be applied to criminal litigation, alternative outcomes, judicial public policy, and court protocols.

The authors further emphasize the need to adopt a model of restorative justice that allows parties to resolve disputes rather continuing the model of retributive justice that is present in many Latin American countries. Judicial outcomes are predominantly focused on reparatory agreements, which tend to focus on abstract retributive measure that are not related to resolving the actual dispute. More outcome-based reconciliation efforts are needed. Many judicial decisions derive from attempts to reduce congestion in the system with less emphasis on dispute resolution. The authors propose joint judicial, executive, and legislative efforts to reduce judicial congestion and to adopt policies that will encourage restorative outcomes. Such proposals include having the legislature regulate dispute resolution systems that encourage restorative agreements made between parties and teaching judicial actors to recognize and use techniques to encourage restorative solutions.

The authors note that criminal procedural reform has been highly successful in increasing the efficiency over the inquisitorial system. Despite these significant successes, the authors observe that in countries such as Mexico and Chile, efforts were focused on quantity over quality. As such, the authors assert that additional qualitative monitoring is needed. Finally, the authors propose inter-institutional coordination and greater governance of the criminal justice system.

NOTE: This summary is produced by the Rule of Law Collaborative, not by the original author(s).

Adversarial Criminal Justice in Latin America: Comparative Analysis and Proposals

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