Paul J. Zwier & Alexander Barney, Moving to an Oral Adversarial System in Mexico: Jurisprudential, Criminal Procedure, Evidence Law, and Trial Advocacy Implications

• Citation: Vol. 26 No. 1
• Publication year: 2010
• topic: Criminal procedure

MOVING TO AN ORAL ADVERSARIAL SYSTEM IN MEXICO: JURISPRUDENTIAL, CRIMINAL PROCEDURE, EVIDENCE LAW, AND TRIAL ADVOCACY IMPLICATIONS

Paul J. Zwier* Alexander Barney**

INTRODUCTION

In 2008, Mexico passed a series of federal constitutional reforms requiring oral adversarial criminal trials. The reforms give Mexican states until 2016 to implement the shift from a written inquisitorial system to the new oral adversarial system.1 At the time of this writing, twenty-four states have implemented the changes to some degree, with varying degrees of success.2

The reforms were motivated by both internal and external factors. The traditional inquisitorial system had grown cumbersome and inefficient, and it lacked transparency. The system was criticized by the international community, including in a 2002 report by the United Nations Commission on

Human Rights.3 Following that report, the United States and Mexico

collaborated on a project at the Center for Strategic and International Studies (called the Mexico Project) to advance President Vicente Fox’s justice reform proposals.4

* Professor of Law, Director of International Advocacy and Dispute Resolution, and Director of the

Advocacy Skills Program at Emory University School of Law.

** First fellow with Emory Law School’s Center for Advocacy and Dispute Resolution. J.D., University

of Southern California Gould School of Law (2008); B.A., Swarthmore College. In his position as Center Fellow, Barney has served as Project Coordinator for the Emory and Panamericana Universities’ Partnership to Establish a Mexican Institute for Trial Advocacy, a USAID-funded project. He was also a visiting professor at Panamericana University School of Law in Mexico City for the 2009 fall semester. He currently practices labor law at The Karmel Law Firm in Chicago.

1. Constitución Politica de los Estados Unidos Mexicanos [C.P.], as amended, Diario Oficial de la

   Federación [DO], 5 de Febrero de 1917 (Mex.).

2. Oaxaca, Chihuahua, and Nuevo Leon had oral trials prior to the federal reforms. Miguel Sarre & Jan Perlin, Mexico, in CRIMINAL PROCEDURE: A WORLDWIDE STUDY 351, 352 (Craig M. Bradley ed., 2007).

3. Special Rapporteur on the Independence of Judges and Lawyers, Civil and Political Rights, Including Questions of: Independence of the Judiciary, Administration of Justice, Impunity, 4–5, Econ. & Soc. Council,

   U.N. Doc. E/CN.4/2002/72/Add.1 (Jan. 24, 2002) (by Dato’Param Cumaraswamy).

4. See David A. Shirk & Alejandra Ríos Cázares, Introduction: Reforming the Administration of Justice in Mexico, in REFORMING THE ADMINISTRATION OF JUSTICE IN MEXICO 1, 35–38 (Wayne A. Cornelius &

   David A. Shirk eds., 2007).

   Implementing the reforms is a major challenge for Mexico. Creating the new court system and training the judges and staff to manage that system will require an enormous investment of time and resources. The greatest challenge, however, may be in changing the perspective of the Mexican legal community. The Mexican legal system is based on a positivist philosophy that in some

   ways conflicts with the assumptions behind an oral adversarial system.5 For the

   reforms to work, Mexican judges and lawyers will need to challenge some of the assumptions of the positivist system.

   
   

   Mexico has looked to countries with oral adversarial traditions for help with the reforms, including the United States. The Authors have worked for the past three years on a partnership between Emory University School of Law and Universidad Panamericana in Mexico City. During that time, we have seen the challenges that the change in perspective poses for the reform. We have also seen how our own assumptions have limited the effectiveness of our training of Mexican judges and attorneys.

   
   

   To better understand the challenges to the reforms in Mexico, we begin with an examination of the jurisprudential debate between positivism and natural law. This Article attempts to explore what these two fundamentally contradictory legal and political views mean for Mexican lawyers in the context of the new constitutional amendments. In Part I, this Article explores the differences between Mexico’s positivism and the aspects of natural law inherent in an oral adversarial system. Specifically, it examines the influence of positivist legal philosopher Hans Kelsen on Mexico’s legal tradition and contrasts Kelsen’s perspective with that of the Scottish Common Sense School, the philosophy behind the United States’ common law system.

   
   

   In Part II, this Article looks at the major choices before the legislature regarding changes to criminal procedure and evidence,6 and what choices Mexico faces in incorporating international human rights law into its law of criminal procedure and evidence law.7 Most importantly, where will Mexico finally come down in its identity crisis over natural law and positivist law, as it

   
   

5. See H. Patrick Glenn, Doin’ the Transsystemic: Legal Systems and Legal Traditions, 50 MCGILL L.J. 863, 895–96 (describing the Mexican legal system as incompatible with the U.S. system because of the Mexican government’s doctrinally founded position); infra Part I.

6. Código Federal de Procedimientos Penales [CFPP] [Federal Criminal Procedure Code], as amended,

   DO, 30 de Agosto de 1934 (Mex.).

7. Mérida Pillar II: Rule of Law, USAID/MEX. USAID, http://www.usaid.gov/mx/ruleoflaweng.html (last visited May 5, 2012) (describing the Rule of Law initiative and Mexico’s incorporation of due process and international human rights).

   moves to an oral adversarial system by due process of law?8 How much will the common law adversarial system of the Magna Carta become the foundation for its criminal procedure? What will Mexico do with illegal police conduct in the gathering of evidence? How will a prosecutor be held accountable in his or her preparation of the case and gathering of evidence? How much will the pretrial procedure try to filter out evidence that is obtained in violation of the human rights of the witnesses or parties involved? And how much of individual rights will be sacrificed as Mexico deals with the emergency of its drug war?

   
   

   In Part III, this Article examines objections raised from conference delegates and early participants in training programs alike about the overly emotional nature of oral advocacy.9 While these objections might grow out of the philosophical differences between positivism and natural law, they might

   also be grounded in cultural differences between the United States and Mexico. Moreover, much of the need for passionate advocacy in the United States is based on assumptions about what keeps jurors interested and helps them reach a just understanding of the facts in the case. If Mexico will not use a jury system, then the issue for reformers is how much the Mexican judiciary will similarly need passionate advocacy to discern the facts. The conference attendees reported resistance to the need for giving an opening statement, or conducting confrontational impeachment, or giving a stirring closing

   argument.10 They also were quite sure Mexican lawyers would not be

   permitted to appeal to underlying values, or use analogies to argue the inferences on closing.11 They were unsure about the need for exhibits in criminal cases, as the file already contained the prosecutor’s collection of evidence, and the use of pictures and exhibits were thought to be grandstanding.12 In addition, they were skeptical of making objections to the presentation of evidence because they were convinced their judges would not

   
   

8. Id.

9. Rule of Law Reform and the Drug Trade: Challenges and Implications in Mexico and the U.S., held by the Center for Advocacy and Dispute Resolution, and the Institute for Developing Nations (Sept. 29–Oct. 1, 2010) [hereinafter Rule of Law Reform and the Drug Trade.]. Video clips of remarks and panel discussions are available at Conference & Forum Video Archive, EMORY L., http://www.law.emory.edu/centers-clinics/center- for-advocacy-dispute-resolution/conference-forum-video-archive.html (last visited May 5, 2012) [hereinafter Conference & Forum Video Archive].

10. See Rule of Law Reform and the Drug Trade, supra note 9.

11. See id.

12. See id.

    understand hearsay or other evidence rules that prohibited them from considering character evidence.13

    
    

    This Article questions how the court—in its dual role as legal interpreter and as fact-finder—will provide for the system’s transparency and protect itself from bias. How will the court deal with the evidence issues raised by the change to an oral adversarial system? Will Mexican judges find it necessary for a new procedural law and evidence code to be able to justify to the public how the court is making its credibility determinations? Will these decisions give the public confidence that they are made in an unbiased manner? In this regard, how will the court interpret the new constitutional provisions with

    regard to any confrontation rights that are given to the defendant?14 Will the

    right, if any, to confrontation based on reliability considerations be applied only to the weight the judge will give testimony never confronted, or will it be seen as a fundamental constitutional right that makes the evidence inadmissible at trial? The Mexican reformers will need to decide these questions so that judges and lawyers, who will each play new roles in an oral adversarial system, know their respective duties under the law. Answers to these questions will also have major implications for the educational reform effort.

    
    

    Additionally in Part III, this Article looks at the rhetorical assumptions that underlie the principles of oral persuasion. These are examined to see whether there is enough agreement with these assumptions in Mexico to overcome the resistance to the techniques being taught.

    
    

    Finally, in Part IV, this Article explores the specific assumptions that underlie the oral presentation of evidence as it plays out in direct examinations, cross-examinations, impeachment, and the giving of opening statements and closing arguments. It considers whether the change to an oral...