He pulled together a group that met
monthly at informal gatherings in
Juarez, but the exchange never had
a chance to catch on.
“I thought that there could be great
opportunities for both sides, once
they got to know each other. But then
came the killings,” Anchondo says.
There’s more than just a river separating the two legal communities.
There are traditions at odds with
one another that go back centuries.
Though many basic rights are
spelled out by Mexico’s 1917 constitution, much of Mexican criminal
procedure has been based on the
Code d’Instruction Criminelle, the
so-called Napoleonic Code, enacted
by Bonaparte in 1808. The code has
been the basis for criminal law in
much of Europe and nearly all of Latin America. Many of those countries
have modernized their procedures to include U.S.-style trials. Although
reforms have been initiated in four of Mexico’s 31 states, criminal proceedings in most of Mexico still look as they did 50 years ago.
THE TRIAL TRAIL
TRIALS HAVE TRADITIONALLY BEEN INQUISITIONAL—SUPERVISED BY A SIN-
gle judge who has the authority to investigate the crime. But in actual
practice, the trial process has been a lengthy, paper-driven bureaucratic
affair. Much of the actual process, along with much of the power, was left
to the state or federal prosecutor.
“In Mexico, everything is reduced to writing—everything,” says Jorge
G. Vargas, an expert on the Mexican legal system and a professor at the
University of San Diego School of Law. “Witness statements, confessions,
even the questions that are asked of a witness are put on paper.”
Traditionally in Mexico, prosecutors preside over the important early
hearings, or “averiguacion previa,” where evidence and witness statements
are gathered and assessed. In Mexico, there is still no jury trial, still no
grand jury, no case law, no limit on the ability of police to stop and frisk
pedestrians, and no bail for defendants charged with crimes more serious
than misdemeanors. A defendant formally charged
with a serious crime is jailed until trial, a process that
can take months or even years.
Criminal proceedings are meant to be accusatory
instead of adversarial. Prosecutors present all evi-
dence, including that marshaled by the defense. All
of it is introduced in written form, and the most im-
portant decisions are made at pretrial hearings, where
the reliability of evidence is assessed. Judges fre-
quently delegate decisions concerning evidentiary
questions to their law clerks and secretaries, even
though the formal record shows the judge as being
present. By the time cases reach the trial stage, the
verdict and sentence are essentially predetermined.
Vargas says the “civil tradition”—the document-
based handling of every aspect of each criminal case
—produced a system that demeaned everyone in-
volved. “It was inefficient, lazy and certainly corrupt.”
Under the new system, judges are assigned specif-
ic tasks related to pretrial assessments of evidence
and the recording of statements. And the notion of
oral argument and live witness testimony—an inte-
gral part of the new reforms—is utterly revolutionary.
“This is what is really being brought into the sys-
tem—oralism,” says Vargas, a native of Juarez who
predicted 10 years ago that Mexico would be forced
to change to trials of record that include live testimo-
ny. “Trials take place for which there is no written
record; that is ridiculous.”
In part because the court system is grossly mistrust-
ed by many citizens, Mexican law imposes limits on
police and prosecutors that make it extremely diffi-
cult for criminal cases to be brought in the first place.
One of those limits is “amparo,” a kind of habeas
corpus doctrine developed in the Yucatan in the
1840s, a period when Mexico suffered a succession
Continued on page 63
Robert Anchondo
