The Oral Trial on the Ordinary Procedure (Spanish Law)

• Introduction:

The Oral Trial is where everything is decided, it is the place where the proofs gathered during the previous investigation has to be practiced in front of the Tribunal which is going to decide on the innocence or guilt of the accused, until this juncture of the procedure almost everything is in the air, who apparently must be condemned, can be acquitted in the last moment, who looks like an innocent deserving to be acquitted, at the end, can be guilty at the eyes of the Tribunal and the public opinion.

• Is there something before the Oral Trial?

Given the importance we attribute to the Oral Trial, we can think that before it, there is nothing, that the Criminal Procedure is only this act where the parties, the prosecution and the defendant, heatedly argue over the innocence of a person. But such perception is far from the reality, the Oral Trial is only the summit, the core, the kernel, of a long process which has begun long before it.

A Criminal Procedure is of progressive crystallization, it means that there are different stages which contribute to the unveiling of the truth, because we can never forget that the goal of the Criminal Procedure is always to find out the truth of facts occurred on the past through the evidences, the proofs, the marks, they have left in the things and persons which have been part of them. Then, a crimen takes place, the victim, or a witness, or an evidence can give testimony that this has occurred, the crime has left a mark which may lead to its authors. But how does this mark arrive to the knowledge of an Examining Magistrate who is the public authority in charge of initiating the Criminal Procedure? There are three ways through which the commission of a crime may be brought to the notice of an Examining Magistrate, a report, a lawsuit or a police´s report. 

Those who have been witnesses of the commission of a crime are oblige by the Spanish Criminal Procedural Law (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim) to report it to an Examining Magistrate or Public Prosecutor (art. 259 LECrim). Furthermore, those who by any means has had knowledge of the commission of a crime must report it to the Public Prosecutor, to the competent Tribunal or the Examining Magistrate, or to a Police Officer (art. 264 LECrim). Both obligations have an exception, the persons established in the article 261 LECrim are not obliged to report: 1) Those who are married with the criminal or those who live together with the criminal in a similar relation of affectivity, and 2) Those who are ancestor and descendant of the criminal and the collateral members of its family until the second grade included. This exception is really important, because the authority who receives the report has to warn the victim, the witness, or any other citizen of its dispensation to not report when they are in some of the cases of the art. 261, otherwise, the report will be null and void, and with it all the proofs obtained by means of it (Spanish Supreme Tribunal´s Sentence nº 2932/2020).

The lawsuit is different from the report, a report is not subjected to formalities of form, it can be made in writing or verbally, it doesn’t need the assistance of a lawyer, it can be made before any Examining Magistrate, Public Prosecutor or Police Officer, making a report is free of charge or who by means of a report communicates a crime is not automatically a party of the Criminal Procedure, on the contrary, the lawsuit is endowed with some formalities making it more inaccessible than a report. A lawsuit makes a party of the Criminal Procedure those who bring it on the competent Examining Magistrate (art. 270 and art. 272 LECrim), consequently a lawsuit has to be brought on the competent Examining Magistrate (art. 272 LECrim), a lawsuit has to be brought by means of an attorney and has to fulfill requisites of form (art. 277 LECrim), a lawsuit has to be accompanied of the payment of a bail (art. 280 LECrim) in order to respond of the result of the Criminal Procedure, although there are exceptions to this rule, for example the offended is exempted (art. 281 LECrim). But at the end, they fulfill the same function to communicate the commission of a crime to a public authority with the aim of initiating the Criminal Procedure, furthermore in both cases there is no the requisite of being the victim or offended of the crime to bring them.

The police´s report is regarded by the LECrim as any other report made by any other citizen (art. 297 LECrim), but in some cases the police´s report may contain objective data and proofs of impossible repetition during the Oral Trial, which may become it into preconstitute proofs. The Judicial Police has the obligation according to the LECrim of investigating the crimes committed on its territory (art. 282 LECrim), and as soon as from this investigation results the commission of a crime it must share with the Examining Magistrate and the Public Prosecutor its finds (art. 284 and art. 295 LECrim), for the police´s report may be the consequence of a report previously made to them by a citizen, which has been investigated in order to know if it had enough grounds to be transmitted to the Examining Magistrate and the Public Prosecutor.

Notwithstanding the report or the lawsuit, we can deem that the Criminal Procedure has not begun to crystallize. Upon receiving the notice of a crime by some of the three ways above stated, the Examining Magistrate has to assess whether the facts related may be classified in accordance with any of the crimes established in the Spanish Criminal Code (CP) or the report or lawsuit must be dismissed without even having begun the investigation (art. 269 and art. 313 LECrim). Only when the report or lawsuit has been admitted by the Examining Magistrate we can regard that the Criminal Procedure has started, this is the first stage of crystallization of the Criminal Procedure. The report or lawsuit relates facts which will be the object of the subsequent investigation, since a prospective investigation analyzing each of the aspects of the life of a citizen without previously being delimited through some evidence, or at least a report more or less founded, is altogether forbidden by the LECrim. In fact, some measures of investigation, like the interception of the corresponde (art. 579 – art. 588 LECrim) or the phone tapping (art. 588 ter a – art. 588 ter m), and in general all the measures of investigation affecting some of the rights of the article 18 of the Spanish Constitution (in Spanish Constitución Española, henceforth CE), cannot be authorized by a Examining Magistrate without a previous investigation of the Judicial Police clearly pointing out the existence of the commission of a crime and a person liable for it. Then, what happens if the Judicial Police finds evidences of another crime different from the investigated? that the investigation cannot be prospective doesn’t close the door to the investigation of new crimes which appear on account of the current investigation, indeed the LECrim expressly authorizes the investigation of such new crimes when it regulates the mesure of investigation concerning the interception of correspondence (art. 579 bis).

Thereby, the Criminal Procedure in reality starts with the admission of the report or lawsuit by the Examining Magistrate which gives place to the commencement of the investigation (art. 308 LECrim). The investigation is aimed to prepare the oral trial and to find out the existence of the crime with the circumstances which may influence its qualification and the liability of the criminals, guaranteeing their persons and the pecuniary liabilities of them (art. 299 LECrim). That the investigation has been initiated doesn’t mean that the investigated knows that is being investigated, the LECrim allows the Examining Magistrate to declare the secret of the investigation when the following requisites concur (art. 302 LECrim): 1) The investigation must be about a public crime (those which may be investigated without the report of the victim), 2) The motive for declaring secret the investigation must be to avoid the grave risk to the life, liberty or physical integrity of other person, or to prevent one situation which may gravely compromise the result of the investigation or the Criminal Procedure. Nevertheless, the secret of the investigation must be lifted at least ten days before its conclusion, otherwise, the investigated cannot exercise its right of defense. Either when from the beginning of the investigation the investigated is informed of its existence or when the investigated is informed at least ten days before its conclusion, as soon as from the investigation results evidences attributing the commission of a crime to a determined person or a report or lawsuit is admitted attributing a crime to determined person, the investigated must be informed of its rights of defense (art. 118 and art. 384 LECrim): 1) The right to be informed of the facts which are attributed to it, and of any relevant change in the object of the investigation and the facts attributed, 2)  The right to examine the acts of investigation in plenty of time for safeguarding the right of defense and in any case before it testifies, 3) The right to act in the Criminal Procedure for exercising its rights of defense in accordance with the law, 4) The right to freely designate a lawyer, without prejudice of what is established in the point 1 a) of the article 527, 5) The right to ask for a lawyer free of charge, the procedure to do it and the conditions to obtain it, 6) The right to the translation and interpretation free of charge according to the articles 123 and 127, 7) The right to remain silent and not to testify if it doesn’t wish to do it, and not to answer one or more questions asked to it, 8) The right not to be compelled to testify against oneself or to confess guilt. We find other articles talking about the rights of the investigated along with the articles regulating this stage of the Criminal Procedure, the art. 311 grants the investigated the right to propose acts of investigation, a right which is a manifestation of the fundamental right to utilize the pertinent means of proof to its defense (art. 24.2 CE), or the right to be present during the ocular inspection of the crime (art. 333 LECrim). 

Despite of the importance of informing the investigated of its rights of defense, or even of the existence of the investigation, the milestone truly important during this stage of the Ordinary Procedure is the committal for trial (art. 384 LECrim). As soon as from the investigation results enough evidences attributing a crime to a person, or as soon as the secret of the investigation is lifted and from it has resulted strong evidences of a crime by determined person, the Examining Magistrate must dictate the committal for trial. This is the first judicial resolution formally attributing to a person criminal facts, this is the second milestone contributing to the progressive crystallization of the Criminal Procedure, now the Examining Magistrate formally has delimited the Criminal Procedure subjectively and objectively, there are persons liable of a crime and facts classified according to the CP attributed to that persons. Let´s think a little more about it. It is easy, when a report or a lawsuit besides facts relates who has committed them, if the investigation has not been declared secret by the Examining Magistrate (art. 302 LECrim), the person or persons mentioned in the report or lawsuit as liable for these facts must be informed and endowed with its rights of defense (art. 118 LECrim). But sometimes, it is not as easy, and first there is a policial investigation where the boundaries between who is a witness and who is liable of a crime are not clear, thus who first was regarded by the Examining Magistrate as a witness may be later committed for trial on account of the discoveries obtained during the investigation. The distinction is essential, a witness is not endowed with the rights of defense of the art. 118 and art. 384, a witness has the obligation of testifying all it knows (art. 420 LECrim), on the contrary, as we have seen, a person who is regarded by the Examining Magistrate as liable of a crime has always the right not to be compelled to testify against oneself or to confess guilt, in other words, it can lie without negative consequences to its defense. But careful, that a person committed for trial can lie without negative consequences is true, but it is also true that if from the investigation results evidences of its liability and the lies are discovered, these lies may help to underpin the proofs against it. Therefore, as soon as a person is committed for trial it is endowed with the rights of defense, it is formally accused of determined facts with criminal character. Notwithstanding the gravity of the situation of who is formally accused by the Examining Magistrate, the committal for trial is a judicial resolution which is essentially provisional, it can be modified during the investigation according to its discoveries, so who was initially committed for trial may be acquitted at the end of the investigation and vice versa. The committal for trial will become definitive at the end of the investigation (art. 324.4 LECrim), when the Examining Magistrate regards concluded the investigation (art. 622 LECrim), the Tribunal trying the case confirms this decision, and has to decide between the opening of the Oral Trial or the dismissal of the case (art. 632 LECrim).

The conclusion of the investigation, which has to be concluded within twelve months since its beginning, although the Examining Magistrate may extend this initial period before its conclusion by successive extensions of up to 6 months (art. 324.4 LECrim), opens the intermediary stage of the Criminal Procedure which the stage we have mentioned just at the end of the last paragraph. On this stage is where is decided whether the door giving access to the Oral Trial should be opened. When the Examining Magistrate regards the investigation concluded three things may happen: 1) The Tribunal trying the case doesn’t share this point of view and decides that the investigation is not concluded, so the investigation is reopened (art. 631 LECrim), 2) The Tribunal trying the case agrees with the Examining Magistrate about the conclusion of the investigation, but regards that with the proofs which have been gathered during the investigation there are not enough evidences which justify the opening of the Oral Trial, so the case is dismissed (art. 632 LECrim), and 3) The Tribunal coincides with the Examining Magistrate declaring the end of the investigation, and deems that there are enough evidences to open the Oral Trial (art. 633 LECrim).

Of the three options, the problematic is the second. The dismissal of the case can be of two kinds: the acquittal on all charges (art. 637 LECrim), or the stay of execution (art. 641 LECrim). And although the effect in general terms is the same, the conclusion of the Criminal Procedure, the difference between both is big. The former has the effect of res judicata upon the Criminal Procedure, while the former only closes the Criminal Procedure until new proofs appear justifying the opening of the Oral Trial.

The acquittal on all charges must be declared by the Tribunal when: 1) There are no rational evidences of the commission of the crime which have given motive to the formation of the cause, 2) The facts are not a crime according to the CP, and 3) The persons attributed with the facts which constitute a crime, are exempt of criminal liability.

The stay of execution must be declared by the Tribunal when: 1) The commission of the crime which has initiated the Criminal Procedure is not enough justified, and 2) From the investigation has resulted evidences of the commission of a crime, but there is not enough motives to accuse a determined person or persons.

Therefore, we can conclude that yes, there is something before the Oral Trial.

• The commencement of the Oral Trial:

At last we have arrived, the moment where all is decided has started, it is like starting from the beginning, like a rebirth for the defendant and the prosecution, there evidences of a crime, yes, but they may be declared null and void by the Tribunal, or maybe a witness who has not testified yet appears and changes everything, or maybe the Tribunal commits a procedural mistake and the Oral Trial has to be repeated.

The regulation of the Oral Trial starts with the provisional qualification of the crime by the parties (art. 650 LECrim), first the prosecution and later the defendant have to delimit the facts, its classification according to the CP and the persons liable of the them, this is the third milestone which contributes to the crystallization of the Criminal Procedure. Here we see clearly, how the Tribunal is situated in a position of neutrality regarding the Criminal Procedure, it has to be a party alien to the Tribunal who carry out the prosecution, although this separation is not as clear during the investigation of the crime, where the Examining Magistrate leads the investigation, and establishes the object of the Criminal Procedure through the committal for trial (art. 384 LECrim), formally attributing facts with criminal appearance to a person. But, why we will start an Oral Trial when it can be avoided? This is what seems to have thought our legislator when grants to the parties the possibility of reaching an agreement on this moment (art. 655 LECrim), when although the stage of the Oral Trial has commenced, the proper Oral Trial has not commenced yet, after the provisional qualification of the crime by the parties is when the day and hour of the Oral Trial is fixed (art. 659 LECrim). Although the parties of the Criminal Procedure cannot dispose of its object, since its goal always will be to find out the truth regarding the facts which has originated it, the parties are allowed to carry out a sort of transaction, they can concur on the facts and its classification according the CP, this will avoid an Oral Trial unnecessary, for what is the Oral Trial if not a battle between the prosecution and the defendant in which each part try to prevail its version of the facts which has motivated the Criminal Procedure? Nevertheless, this faculty of the parties is not absolute, it is limited through some requites: 1) The punishment cannot surpass the six years in jail, 2) When there is more than one defendant, all of them have to concur with the punishment asked for by the prosecution, 3) The punishment agreed by the parties has to be possible according to the CP.

Then, in reality the Oral Trial only starts when the parties has not been able to reach to an agreement before its commencement. But once the Oral Trial has commenced, the legislator does not cease to try to avoid it, a lot of resources of the parties and of the State will be wasted on it, so, it gives another opportunity to the parties of reaching an agreement on the legal classification of the facts and its legal consequences before the practice of the proof begins (art. 688 LECrim). The conditions to reach this agreement continue being the same, but we have to explain them better, because these requisites have been modulated by the practice and the Spanish jurisprudence. Firstly, because it is possible that the prosecution have reached an agreement with only part of the defendants, this have been allowed by the Spanish tribunals when those who have not agreed with the prosecution are condemned utilizing proofs only practiced during the Oral Trial and without taking into account what have been admitted by those who have made a pact with the prosecution. And secondly, because although the agreement between the parties is out of the boundaries marked by the LECrim, they can still agree on the punishment and avoid a long, arduous, Oral Trial, they can reach an agreement, reduce the practice of the proof on the Oral Trial to the minimum, with the testimony of the defendant admitting the crime can be enough, and concur in their definitive qualification of the crime (art. 732 LECrim) which is what in reality binds the sentence. 

The parties utilize also their writings of provisional qualification of the crime to propose the proofs which will be practiced during the Oral Trial (art. 656 LECrim) and although the LECrim only establish this procedure for the Abbreviated Procedure, which is utilized to try those crimes within the limits marked by the article 757 LECrim, the parties can propose proofs again at the beginning of the Oral Trial during its previous audience (art. 786.2 LECrim). As during the investigation (art. 311 LECrim), this right to propose proofs is not an absolute right, the Tribunal may dismiss those proofs which are not linked with the object of the Criminal Procedure (art. 659 LECrim), or as the CE says which are not pertinent, because the CE only recognizes the right to utilize the pertinent means of proof to its defense (art. 24.2 CE) to the accused, therefore all the proofs practiced during the Oral Trial have to be relevant to form the procedural truth or reality which will be given expression in the sentence.

• At last the practice of the proof:

The agreement has been imposible, even at the onset of the Oral Trial, now is when the practice of the proof begins. The order of the proofs during the Oral Trial is not important, they will be practiced in accordance with the order given to them by the parties in their writings of provisional qualification of the crime (art. 701 LECrim), what is important is its value, because despite the fact that the Oral Trial is only a part of the Criminal Procedure, the only proofs which are capable of destroying the presumption of innocence of the accused are those practiced during a public, oral Trial, in front of the Tribunal which will dictate sentence and subjected to contradiction by all the parties. Of course, there are exceptions to these general rule which we will see later.

Let´s divide the proof into two big groups, the personal and the documentary. The former group is formed by the testimony of the witnesses, of the victim and of the accused, although the latter cannot be regarded as a proof, because as we have seen before an accused has the right to lie. The witnesses who will testify during the Oral Trial have to remain in solitary confinement until they give testimony (art. 704 LECrim) and they have to testify one by one (art. 705 LECrim). If the witnesses breach this obligation of remain in solitary confinement, it will not provoke the declaration of null and void of their testimony, it will affect only to the credibility of the account of the facts they have given. A witness can be of two sorts, it can be a direct witness or a referential witness, the former is who has perceive the commission of a crime by any of its senses, the latter is who knows about a crime through what a direct witness has related to it. The referential witness is expressly allowed by the LECrim in its art. 710, although the jurisprudence has modulated its validity to cases where a direct witness cannot be found and to support what a direct witness has testified, in either case, the testimony given by a referential witness cannot alone sustain a condemnatory sentence. 

And the testimonies which has been given during the investigation of the crimen, can they be used during the oral trial? The answer is yes, but due to the importance of this kind of proof, we must endeavor ourself to give a more accurate answer starting from the beginning. Until a witness testifies in front of Tribunal trying the case its testimony may have been given on two occasions before, to the judicial police when the police was elaborating the police´s report, and in front of the Examining Magistrate when the Criminal Procedure started (art. 308 LECrim), and on each occasion this testimony has a different value. Recall what I have said before about the validity of a proof, a testimony given only in front of the police can never destroy the presumption of innocence of the accused, this is essentially the agreement of the Second Court of the Spanish Supreme Tribunal of June 3, 2015, on the contrary, when this testimony is given in front of an Examining Magistrate it can be introduce as a proof on the Oral Trial if some requisites are met: 1) The testimony has to be given in front of the Examining Magistrate, 2) The accused must have the opportunity of subjecting this testimony to contradiction, at least through its lawyer, 3) The testimony has to be recorded by a means which allows the recording of image and sound, and 4) The testimony can only be introduced into the Oral Trial by means of the art. 714 and art. 730.2 LECrim. The article 714 serves to introduce into the Oral Trial as proofs those testimonies given during the phase of investigation when, there are important disparities between what the witness is testifying during the Oral Trial and what it testified in front of the Examining Magistrate, in these cases, the Tribunal may choose the testimony which it regarded as more real. On the other hand, the art. 730.2 LECrim, is utilized by the Tribunals to introduce as proofs, the testimonies given during the investigation when they cannot be repeated during the oral trial because the witness must be absent of the national territory or there is a risk that an illness may hinder its appearance in court (art. 448 LECrim). Besides, by means of the art. 730.2 are introduce as proofs into the Oral Trial the testimonies given by minors with less than 14 years (art. 449 ter), when the witness is a minor but has more than 14 years, its testimony will be introduce into the Oral Trial by means of the article 730.2 only when there exists a grave risk to its mental integrity and this has been corroborated by a specialist, the Examining Magistrate should duly motivate this circumstance in the resolution which authorizes the minor to not be present during the Oral Trial. Notwithstanding, the minor with less than 18 years or the mentally handicapped may testify during the Oral Trial avoiding the visual confrontation with the accused, when it is necessary to prevent or reduce the the harm consequence of this testimony (art. 707 LECrim)

To the above, we must add the testimonies which may be given in accordance with the art. 657, which authorizes to the parties to solicit to the Tribunal the practice of the proofs which cannot be practiced later or which may motivate the suspension of the Oral Trial. But in these cases, the proof will be practiced in front of the Tribunal trying the case, and not in front of the Examining Magistrate.

Another thing we have to take into account regarding the testimonies given during the Oral Trial, is the warning which must be made by the Tribunal to all the persons who are exempted of testifying for being in any of the causes of the articles 416, 417 and 418 (art. 707 LECrim):

1. The art. 416 exempts from the obligation of testifying the family of the committed for trial in direct upward and downward line, its husband or wife or any other person linked by an analogous relation of affectivity, its brothers and sisters, and the blood collaterals relatives up to second civil grade.
2. The art. 417 states that cannot be obliged to testify: the priests of any religion on what they know on account of their charge, the public servants when they cannot testify without breach the secret which as consequence of their charge they are oblige to guard, or the physically handicapped or mentally handicapped.
3. According to the art. 418, a witness cannot be obliged to testify about one question whose answer may material or morally harm and in a direct and important manner, either the person or the fortune, of any of relatives to which is referred the art. 416. 

The same warning should be made by the Examining Magistrate during the phase of investigation, and as we have seen before when is brought a report (art. 261 LECrim). Furthermore, the rejection of this exemption by a witness during any of these stages of the Criminal Procedure does not imply a rejection on a later stage of the Criminal Procedure. The failure to comply this obligation by the Police, the Examining Magistrate, or the Tribunal, will be the declaration of null and void of the testimony given.

Ending with the personal proof, a testimony may create the occasion to the practice of more proofs, since the art. 729.3º allows the parties to solicit new proofs to the Tribunal when they are necessary to prove any circumstance which may influence in the probatory value of the testimony of a witness.

According to our division of the proofs in two big groups, now is the turn of the documentary proof. The documentary proof is the proof which is presented to the Tribunal by means of paper, by means of a CD or DVD, or any other means which allows to store information, data. Then in this group can be included all the evidences you can imagine which are not personal, are not a simple thing (like a knife or clothes), and are more than the piece of paper or plastic where are represented. Between all of them, we have to stress the importance of two, the Expert´s report and the Police´s report.

The Expert´s report is asked for by the Examining Magistrate when to know or appreciate an important fact or circumstance during the investigation of the crime, are necessary or advisable scientific or artistic knowledges (art. 456 LECrim). Therefore, an Expert elaborates a report about a subject which necessitates special knowledges, this is why I have included this kind of proof as documentary, because at least in appearance it complies with the definition I have given. But in reality the Expert´s report is regarded by the Spanish tribunals as a personal or documentary proof because when the sentence is appealed on the Spanish Supreme Tribunal based on error in the assessment of the proof by the Tribunal, art. 849.2 LECrim, if it doesn’t fulfill some requisites is regarded personal proof, and because the Expert who has elaborated a report has the obligation of appearing in court only if any of the parties impugn its content in their provisional writings of qualification of the crime (art. 724 LECrim), on the contrary, if the Expert´s report is not impugned by any of the parties, this Expert´s report will be assessed by the Tribunal according to the article 726 like documentary proof. Furthermore, when the Expert´s report is not impugned by the parties, it is regarded as preconstitute proof by the Tribunal, like is the case of the forensic reports, the medical assistance reports, or appraisals carried out by a judicial expert.

With a Police´s report their treatment by the Tribunal is similar. A Police´s report may contain data and proofs of impossible repetition during the Oral Trial, like fingerprints, sketches on the ground, the level of alcohol in the blood, phone tapping, or the correspondence intercepted.

In both cases, the article 726 allows to the Tribunal to assess these documents without the necessity of practicing the proof during the Oral Trial.

• The suspension of the Oral Trial:

What happens if a witness does not appear in court and it is the most important proof of the defendant?, what happens if the lawyer of the defendant gets ill and cannot defend its client?, what happens if a witness reveal some important data which may change everything but must be before investigated or corroborated? For these cases and others, the LECrim envisages the suspension of the Oral Trial.

The general rule is that the Oral Trial has to take place in unity of act (art. 744 LECrim), but as all the general rules, it does not apply to the exceptions. The first exception, is when the parties, for independent motives to their will, have not got prepared the proofs offered in their writings of provisional qualification of the crime (art. 745 LECrim and art. 656 LECrim). Here, there may arise two doubts, and the proofs proposed in the previous audience to the oral trial (art. 786.2 LECrim), are they subjected to the same rule?, can a proof proposed during the proper oral trial in order to sway what has been testified by a witness (art. 729 LECrim) suppose the suspension of the oral trial? The former question must be replied doubtless with a yes, although we are under the rules of the Ordinary Procedure, the Spanish jurisprudence has understood applicable to it this possibility expressly established by the LECrim for the Abbreviated Procedure. The latter question is more difficult to answer, for a Tribunal without the intention of suspending an oral trial will not admit a proof which needs its suspension in order to be practiced, nevertheless in both cases will be infringed the same right, the right to utilize the pertinent means of proof to its defense established in the art. 24.2 of the Spanish Constitution (in Spanish Constitución Española, henceforth CE). We have to take into account, that this right, the right to utilize the pertinent means of proof to its defense, is not an absolute right which guarantees to the parties always the admission of all the proofs they propose, on the contrary, the same CE talks about the pertinent means of proofs, which are those related with the object of the procedure, which are capable of determining the innocence or guilt of the accused, which are necessary to find out the truth on the facts related in the report or lawsuit which initiated the procedure. Therefore the Tribunal can dismiss those proofs which are not pertinent, and likewise reject the suspension of the oral trial when although the proof was admitted, it is no longer necessary on account of the proofs already practiced. This is the criteria followed, if the party who has been denied a proof or the suspension of the oral trial, appeals the result of the lawsuit (art. 850.1 LECrim), the Tribunal reviewing the case will not attend to the pertinence of the proof, will regard if the proofs denied, now, after all the proofs practiced and the final sentence, may be necessary, may be important to change the outcome of the lawsuit, because if the appeal succeeded, the consequence will be the declaration of null and void of the sentence and the repetition of the lawsuit from the moment the proof was not admitted or the oral trial was not suspended to allow its practice.

But above motive, is not the only one which may suppose the suspension of the oral trial, the LECrim established more in its article 746:

1) When the Tribunal has to resolve during the debates some incidental question which for any

cause cannot be decided in the act.

2) When according to the LECrim the Tribunal or any of its members has to practice some proof

out of the place of the session and cannot be verified in the intermediary lapse between one

and another session.

3) When the prosecution ́s or denfendant ́s witnesses don’t appear in court and the Tribunal

regards necessary their testimony.

4) When some member of the Tribunal or the defendant of any of the parties suddenly gets ill

until the point it cannot be anymore part in the oral trial, nor can be replaced without grave inconvenient to the defense of the accused. The established to the defendant of the parties is applicable to the district attorney too.

5) When some of the committed for trial is in the case of the above number, and cannot appear in court.

6) When unexpected revelations or retractions produce substantial alterations in the oral trial, making necessary new elements of proof or some new investigation.

And this article has a final statement which is of great transcendence: The oral trial will not be suspended on account of the illness or the failure to appear of some of the accused personally summoned by the Tribunal, if the Tribunal deems, with audience of the parties and stating the reasons on the oral trial ́s minutes, that there exists enough elements to independently try them.

These reasons to suspend the oral trial, although appear in the same article, are classified according to who can bring them to application (art. 747 LECrim). In the case of the first, the second, the fourth and the fifth motive, the Tribunal can declare itself the suspension of the oral trial. On the other hand, in the rest of cases the Tribunal can only declare the suspension of the oral trial when has been previously solicited by a party.

Between all these motives which suppose the suspension of the oral trial, there is one specially relevant, we refer to the sixth. The defendant is obliged to solicit the suspension of the oral trial when the prosecution has made important changes in their definitive writings of qualification of the crime (art. 732 LECrim), regarding what was stated in their provisional writings of qualification of the crime (art. 650 LECrim). In other words, the defendant is obliged to solicit the suspension of the oral trial invoking the application of the art. 746.6o and art. 747, based on the changes made by the prosecution in its writing of definitive qualification of the crime, if later it wants to appeal the sentence on account of an infringement of its rights of defense. For the provisional writings of qualification of the crime serve to delimit the discussion of the oral trial, on the other hand, the definitive writings of qualification of the crime are linked with the accusatory principle which suppose that no one can be condemn for a crime of which has not been previously duly accused and informed. Therefore, changes on the writings of definitive qualification of the crime may infringe the right of defense of the accused insofar as they are relevant to its defense, when the changes altere the essential facts discussed during the oral trial and its legal classification, making the labour of defense of the defendant during the oral trial irrelevant.

Finally, we shall comment the last paragraph appearing at the end of the article 746. It tries to avoid the defenselessness of those accused who have appeared in court on account of the lack of the testimony of the accused who has not attended to the oral trial. There must be enough proofs to try them separately, making irrelevant the testimony of the absent accused for those who may be condemned, on the contrary, the Tribunal must suspend the oral trial.

• The faculties of the Tribunal during the Oral Trial:

The Tribunal has been endowed by the LECrim with some faculties, which it may exercise during the Oral Trial: 1) It leads the debates (art. 683 LECrim), 2) It is in charge of maintaining and restoring the order during the Oral Trial (art. 684 LECrim), and 3) It can order the accused to leave the Oral Trial when its behavior is interrupting the practice of the proof (art. 678 LECrim). 

But the most important are two, which are hidden on the law, since are not included in the chapter which exclusively contains the faculties of the Tribunal, from which we have extracted the faculties mentioned above. The Tribunal can ask questions to the witnesses and to the Experts (art. 708 LECrim),  and the Tribunal can even propose new proofs (art. 729.2º LECrim). Notwithstanding, these faculties have to be exercised by the Tribunal with moderation, for the Tribunal cannot forsake its neutral position into the Criminal Procedure and assume the prosecution or defense of the accused, both faculties can only be aimed to clarify some aspect previously treated by the prosecution or the defendant, but not for bringing new questions which until that moment has not been debated. 

• The end of the Oral Trial and the assessment of the proof:

The writings of provisional qualification of the crime (art. 650 LECrim) mark the commencement of the Oral Trial, and the writings of definitive qualification of the crime (art. 732 LECrim) its end, the former establish the boundaries of the discussion on the Oral Trial, the latter fix the boundaries which has to respect the sentence and is the fourth milestone which contributes to the crystallization of the Criminal Procedure. Once the practice of the proofs has ended the parties has the opportunity of modifying their qualification of the crime, in other words, they can altere the facts and their classification according to the CP. How deep can be this modifications? This is a difficult question, my answer, the essence of the facts and the accused must be maintained, but the parties may change the legal classification of the facts, add nuances as an aggravating factor or an attenuating factor which may have arisen during the Oral Trial, and also details in how they relate the facts. On the contrary, the changes which provoke defenselessness to the defendant are altogether forbidden, for example, the legal classification of the facts may be changed, if the defendant has had the opportunity of defending during the oral trial all the elements which constitute the new classification, because they are what the Spanish jurisprudence has termed homogeneous crimes. In other words, the changes forbidden are those which render all what has been discussed during the Oral Trial irrelevant, because it will infringe the right of defense of the accused. Nevertheless, in order to allege defenselessness on account of these changes during appeal, the defendant must have exercised all the remedies which the LECrim provides to avoid it, it has to have solicited the suspension of the Oral Trial by means of the article 746 or 788.5, for proposing new proofs of for preparing allegations.

The definitive writings of classification of the crime are important too, because they link what has been asked for by the prosecution and the defendant with the sentence which concludes the Criminal Procedure. The sentence has to maintain a correlation with them, although, the Tribunal can altere some aspects, it can add or erase nuances in the facts, it can change even their legal classification, but as before, respecting all the elements which constitute the legal classification discussed during the trial, the have to be homogeneous crimes, and cannot condemn utilizing a legal classification which has a bigger punishment than that solicited by the prosecution. 

But the star at the end of the Oral Trial is the accused, because it has the right to the last word (art. 739 LECrim). Probably, the accused have already testified during the Oral Trial, but in this moment it did not know how would be the rest of the proof, with the right of the last word, the accused has the right of being the last person who talks on the Oral Trial, knowing all the proofs which have been practiced on it. This right is more important than it seems at first glance, if the Tribunal does not concede to the accused such a right, it will suppose the declaration of null and void of the sentence on appeal.

The suspension of the oral trial according to the article 746.6o and art. 747, may be demanded also by the parties when the accused making use of its right to the last word (art. 739 LECrim) has made important revelations which needs to be confirm by new proofs or investigations.

Therefore, the Oral Trial ends with the last word of the accused, and the updating of what is asked for by the parties. Now, the Tribunal has to assess the proofs practiced during the Oral Trial. The proofs will be assessed by the Tribunal according to the principle of free assessment of the proof, it means that the Tribunal only has to respect the rules of the reason, the science, and the logic. Indeed, even the Tribunal is not bound by what have been established by the Experts in their reports. Despite this liberty of the Tribunal assessing the proofs, there are some “rules” which must be respected by the Tribunal, the right to the presumption of innocence of the accused and the principle in dubio pro reo. The former, implies that the proofs which sustain the sentence must have been legally obtained, practiced on a oral, public trial in front of the tribunal trying the case, and subjected to contradiction by all the parties, and duly motivated in the sentence by the Tribunal. The latter, applies once there are proofs legally obtained and duly practiced, but the Tribunal has doubts on the guilt of the accused, if the Tribunal has the slightest doubt, it has to acquit the accused. 

There is another rule, but it only applies to the witnesses. There are three requisites according to which the credibility of a testimony will be assessed by the Tribunal: 1) Subjective credibility: There must be no resentment or spurious interests in the testimony of the witness, derived from its relation with the accused, besides the testimony of the witness must not be spoiled by a mental illness or addictions to drugs 2) Objective credibility: There must exist objective evidences corroborating the testimony of the witness, and 3) The testimony of the witness must be persistent during all its statements: The witness must maintain the essence of the facts related during its statements to the police, to the Examining Magistrate, and the Tribunal. This does not mean that only when the three requisites are met, a statement can be regarded as truth, even complying with only one requisite the testimony can be accepted as proof by a tribunal. These requisites are only aimed to help the work of the Tribunals assessing the personal proofs. Furthermore, according to the Spanish tribunals, with only the testimony of the victim of the crime can be an accused condemned, above all, when the crime tried is the sort of crime which is committed in the intimacy, like a sexual assault.

The sentence ending the Criminal Procedure (art. 742 LECrim), finally concludes its crystallization.

Conclusions:

1. The Oral Trial is only a part of the Criminal Procedure, although the most important.
2. The previous investigation to the Oral Trial, serves to find enough evidences in order to justify the opening of the Oral Trial (art. 299 LECrim).
3. Although the evidences gathered during the investigation only serve to prepare the Oral Trial, there are exceptions, the preconstitute proof.
4. The only proofs capable of destroying the presumption of innocence of the accused are the proofs practiced during the Oral Trial. To these rule there are exceptions, the preconstitute proof.
5. We can divide the proof practiced during the Oral Trial into two big groups, the personal and the documentary.
6. The proof is assessed by the Tribunal according to the principle of free assessment of the proof (art. 741 LECrim).
7. The crystallization of the Criminal Procedure has five stages: 1) The admission of the report or lawsuit (art. 269 and art. 313 LECrim), 2) The committal for trial (art. 384 LECrim), 3) The writings of provisional qualification of the crime (art. 650 LECrim), 4) The writings of definitive qualification of the crime (art. 732 LECrim), and 5) The sentence (art. 742 LECrim).

Víctor López Camacho.