Section Second. The exam of the witnesses (art. 701 – art. 722 LECrim):
Usually the most relevant proof of a trial is the testimony given by the witnesses, on our mind rapidly appear the image of the cartoons drawn during the trial and which later are used by the newspapers in their front page, or the images recorded by the television when the media is allowed inside the sessions and which later are part of the beginning of every news. They always catch the accused of the crime testifying, there is a large element of ghoulish fascination for the testimony given by him. But, have the alleged author of a crime the possibility of avoiding this ordeal?, what happens with the testimony given during the investigation of the crime, can it be used as a proof during the trial?, who can be a witness?, are all the witness obliged by the law to attend to the trial?, can any witness refuse to testify?, can only the testimony of the police send to prison a suspect?, who can make the questions during the trial? If you want to know the answers to all these questions read carefully the following lines.
- Have the alleged author of a crime the possibility of avoiding the ordeal of the oral trial?
To answer this questions we have to go back to a previous phase of the Criminal Process. The accused has two opportunities of avoiding its testimony, one during the qualification of the crime (art. 655 of the Spanish Criminal Procedural Law, in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), and the other just before the beginning of the oral trial (art. 688 LECrim). Both have the same boundaries, the punishment solicited by the prosecution cannot exceed six years in prison, all the defendants have to give their conformity, the defendants have to conform with the higher punishment when there is more than one prosecution, but the LECrim also try to avoid the wasting of public resources, if there can be an agreement between the prosecution and the defendant, the best for all involved in the process is its achievement, therefore the legislator wants to be sure that this possibility is not possible before continuing. The transaction between the parties is limited by the facts and suspects previously included by the Examining Magistrate in the committal for trial (art. 384 LECrim), but within these bounds the parties are free for achieving an agreement.
Therefore the answer is YES, the accused has the possibility of avoiding the ordeal of an oral trial if he conforms the punishment asked by the prosecution.
But, what happens if the punishment demanded by Spanish Penal Code (in Spanish Código Penal, henceforth CP), is more severe than six years of imprisonment? In this case the parties can achieve a disguised agreement, the oral trial will start because doesn’t exist the possibility of a legal agreement between the parties, but the proof practiced during the oral trial will be limited to the confession of the accused, later the final qualification of the crime (art. 732 LECrim) of the prosecution and the defendant will coincide, and the sentence will have to adjust itself to the punishment demanded by the prosecution. However, although a short trial, in this case there would be one.
- What happens with the testimony given during the investigation of the crime, can it be used as a proof during the trial?
The most important idea we have to have on our minds when we think about a proof is that, the only proof with the capacity to destroy the presumption of innocence of a defendant (art. 24.2 of the Spanish Constitution, in Spanish la Constitución Española, henceforth CE), is the proof practiced during the oral trial, and the same happens with a testimony (art. 702 LECrim). It is the only place where the four principles which must govern the practice of the proof exist: 1) The Tribunal trying the case has to be present during the practice of the proof, 2) The oral trial has to be public (art. 24.2 CE), 3) The defendant has to have the opportunity of contradicting the proof proposed by the prosecution (the most important the victim), and 4) The oral trial has to be oral. Nevertheless, this general rule is not always true. First because in the LECrim and Spanish jurisprudence exist the called “preexisting proof”, for example the facts included on a police report (art. 297 LECrim) which are of impossible repetition during the trial, as a blood alcohol level, or the testimonies of impossible repetition during the oral trial (art. 448 LECrim) or a child with less than 14 years who cannot testify during the oral trial (art. 449 ter). In the last two cases, is the LECrim which demands the validity of a testimony during the previous investigation. However, the own LECrim establishes some guarantees to make valid such testimonies (art. 449 bis): 1) They have to be given in front of the Examining Magistrate, 2) The defendant has to have the opportunity of asking questions through his lawyer, and 3) The testimony has to be introduced in the oral trial using the procedure established in the art. 730, the reading of the document where is writing the testimony or through the viewing of the video where is recorded.
I know, I haven’t given you the answer yet, but if you think it again you can see that I have given you part of the answer. It is possible to use the testimony given during the investigation. This is expressly stated by the article 714 LECrim, which authorizes the parties to ask for the reading of the testimony given by a witness during the investigation when it doesn’t coincide with the testimony which he is giving during the oral trial. In these cases, the Tribunal may choose which testimony to believe, but if the chosen is the testimony given during the investigation the Tribunal has to be especially careful with the motivation given on the sentence. Of course, such testimony to be valid, has to have be given with the first two guarantees I have mentioned above.
The Spanish jurisprudence has expressly excluded the validity of the testimonies given only in front of the police, because the only authority bestowed by the law with the impartiality for producing a proof is a judge. Thereby, these sort of testimonies cannot be introduce in the oral trial even by the statement of the police officers who gathered it.
- Who can be a witness?, are all the witness obliged by the law to attend to the trial?, can any witness refuse to testify?
A witness can be two sorts of persons: 1) A direct witness: Someone who has been present at the commission of a crime, or 2) An indirect witness: Someone who has listened how a direct witness has given an account of a crime. In the former case, we have to include the victim of the crime, the suspect is not included because in reality he is not a witness or at least he has not the obligation of confessing he is one. The defendant has the right to not to declare (art. 24.2 CE), and even if he thinks that it may be helpful to his defense he can lie without negative consequences. On the contrary, the victim as a witness has to say always the truth. The latter, an indirect witness, is expressly allowed by the LECrim in its art. 710, but the Spanish jurisprudence has conceded to him a limited scope, he can be used only to support the version of a direct witness or when a directs witness has not attended to the trial, in both cases the version given by an indirect witness cannot be the only proof supporting a sentence condemning a suspect, while a direct witness, even the only testimony of the victim of a crime, may serve to sustain a sentence declaring the guilty of an accused.
I have already responded to the second question, but I will try again. The only witnesses who are not obliged to attend to the trial are those who have manifested its intention of leaving the national territory, and those who may die or may suffer a physical or intellectual illness (art. 448 LECrim), and only if finally any of this possibilities finally happens. We have to add also, a child with less than 14 years, who is not allowed by the LECrim to testify in a trial (art. 449 ter LECrim).
The third question is new. A witness can refuse to testify when he is family of the committed for trial (husband, wife, son, daughter, father, mother, brother, sister,… art. 416 LECrim), when he is a priest and he have had access to the information on account of his condition as priest (art. 417 LECrim), a public servant when they need the authorization of his superior to declare and it was not given (art. 417 LECrim) and the physically handicapped or mentally handicapped (art. 417 LECrim). Here the Tribunal has to have an special care, because it has the duty of warning the witnesses who are in any of the above cases of the possibility of refusing to testify, if it doesn’t fulfill this obligation the testimonies given will be considered null and void, this mistake could signify even the acquittal of a person otherwise convicted.
- Can only the testimony of the police send to prison a suspect?
The testimony of a police officer when he is the direct witness of a crime can serve as the only proof to sustain a conviction (art. 717 LECrim). But the above has its nuances when the police officer, or even the police as a body, are the defendant or the victims of a crime, in these cases their testimony should be assessed by the Tribunal giving to it the value consequence from the practice of all the proof as a whole, in other words, its value will result from the practice of all the proof, taking into account the logic and the norms of the science.
- Who can make the questions during the trial?
During a oral trial there are two parties confronted, the prosecution and the defendant, and each of these parties will have the opportunity of asking to the witnesses the questions they consider necessaries to find the truth (art. 701 LECrim). As you can see, I have not included the judge, but it doesn’t mean that he has not the right to ask questions to the witness, because he has this right (art. 708 LECrim), but he must exercise such a right without ceasing to bear in his mind that he has to be impartial. The President of the Tribunal is allowed to make questions to the witnesses testifying during the oral trial but only to clarify an aspect which has not been enough clarified by any of the questions of the parties, his questions have to remain within the bounds stablished by the qualifications of the crime (art. 650 LECrim) submitted by the parties to the Tribunal, therefore the President of the Tribunal cannot ask about facts which has not previously asked by any of the parties. Commonly is accepted the called “proof upon proof”, which has not the finality of proving favorable or unfavorable facts, but to verify their existence in the process.
From all the above is easy to understand how important are the testimonies for proving the authorship of a crime, serving in many a cases as the only proof for a conviction, and having been elaborated by the Spanish Tribunals a thorough criteria on how they have to be assessed which has to to be added to their regulation on the LECrim.