This really doesn’t change the basics of the Napoleonic Code (just the part we know best — that “guilty until proven innocent” bit), which was based on the Roman code, defining right and wrong in terms of one’s relationship within society. Under the present system, a prosecutor, after investigation, issues an arrest warrant. When the judge reviews the documents, it might turn out that the crime never happened. In the Napoleonic code, everything is spelled out in general terms. A judge assesses the gray areas based on the facts of the case, not on precedent, as in Anglo-American trials. And, in Mexico, the judge normally only reviews documentary evidence, which — of course — prevents judges from assessing the truthfulness of statements by shifty witnesses, or asking probing questions when something just doesn’t sound right.
Other Napoleonic Law countries, and some Mexican states, already use oral testimony, so this isn’t a radical revision of Napoleonic law. The major change in the Mexican legal system — and a necessary one — is that (hopefully) people won’t be sitting in jail cells for minor crimes while waiting for the judge to review the documents (which could take months) when they could plead out, pay a fine and be on their merry way. The most important part of the new law, however, is that the Calderon Administration’s attempts to push through a Mexican version of the U.S. Patriot Act (packaged for Mexico as an anti-cartel initiative) was soundly defeated.
Mexico lawmakers OK presumed innocence
By E. EDUARDO CASTILLO Associated Press Writer
Article Launched: 02/27/2008 09:12:34 AM PST
MEXICO CITY—Mexican lawmakers overwhelmingly approved a sweeping judicial reform that would introduce public, oral trials and guarantee the presumption of innocence, after deleting a proposal to allow police to search homes without warrants.President Felipe Calderon praised the measure, which would replace closed-door proceedings where judges rely on written evidence with U.S.-style open trials based on arguments presented by prosecutors and defense lawyers.
“Changing from an inquisitorial system, like the one Mexico has today, to an adversarial system based on oral trials, as are used in the American justice system, will provide much greater transparency, much more agility in the administration of justice,” Calderon told a meeting of the American Chamber of Commerce.
The bill would also allow recorded phone calls to be used as evidence in criminal cases, if at least one of the conversation’s participants agrees.
Mexico’s lower house and Senate approved the measure last year, but minor changes required new votes by both houses. The Chamber of Deputies passed it by a 462-6 vote Tuesday with two abstentions and it now goes back to the Senate, which had approved the warrantless search proposal. Then, the constitutional amendment must be approved by at least 17 of Mexico’s 31 states.
Several top law enforcement officials lamented the deletion of a clause in last year’s original proposal, which would have allowed police to enter homes without a warrant if they believed lives were in danger or if a crime was being committed inside.Prosecutors said the warrantless searches were necessary in cases where kidnappers had been located and immediate action was needed to free victims before they were harmed. But human rights groups harshly criticized the measure, and legislators agreed to drop it.
The reform creates a new class of judges to rule more quickly on warrant requests, and provides a firmer legal footing for house arrest, which prosecutors often use to buy time to build a case against organized crime suspects.
Although the reforms do not create a jury trial system—only judges will continue to hear cases and decide on convictions—they establish public oral trials, already in place in some states, nationwide.
Qualified public defenders will now also represent suspects, replacing “advocates” who often lack law degrees. And for the first time in history, the presumption of innocence will be guaranteed in Mexico’s constitution.
mexfiles.net 