How we reach the practice of the proof on the Ordinary Procedure and how it is finally practiced during its oral trial (Spanish Law)

The oral trial is the moment most important of all the procedure, until now each party has only gathered the proofs, the evidences, during a previous investigation (art. 311 of the Spanish Criminal Procedural Law, in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), which may sustain their claims precisely in the oral trial, the place where the proof is practiced in front of the Tribunal which will decide on the guilty or innocence of an accused in its sentence. From here we can deduce the first rule, a rule which is the axis around which turns all the process, the only proofs able to destroy the presumption of innocence of the accused is the proof practiced during an oral trial subjected to four principles: 1) The proof has to be practiced in front of the Tribunal deciding the case, 2) All the parties of the procedure have the right of contradicting the proof, 3) The practice of the proof must be during a public trial, and 4) The practice of the proof must be oral. Those of you who know more, will say, all right, but this rule has exceptions, and this is true, but let’s commence little by little, later we will have the opportunity of seeing these exceptions.

First of all, I should warn you that this writing is restricted to the Ordinary Procedure, which is the procedure utilized to trial the gravest crimes. The LECrim doesn’t have an article explicitly stating the scope of the Ordinary Procedure, we have to attend to the art. 757 LECrim in order to know it, and in reality such article establishes the boundaries of the Abbreviated Procedure. The article 757 says, without prejudice of what is stablished for other special processes, the procedure regulated in this Title (the Abbreviated Procedure) will be applied to the trial of the crimes punished with custodial sentence of no more of nine years, or to whatever other punishments of different nature, of any amount or duration. Thus, the Ordinary Procedure is going to be reserved to the trial of those crimes which surpass the limits of the art. 757, which are punished more severely than the crimes tried by the Abbreviated Procedure. The distinction is important, because  the rules for both procedures are different, the Abbreviated Procedure was born with the idea of reducing the periods of trial, whereas the Ordinary Procedure mainly is concerned with the guarantees of the accused, at least upon the paper. For example, in the Abbreviated Procedure the Examining Magistrate is who takes the decisión of opening the oral trial (art. 779.1.4º LECrim), while in the Ordinary Procedure this decision is took by the Tribunal trying the case (art. 632 LECrim), has the accused improved its guarantees by this difference? no, because on the Ordinary Procedure the Tribunal trying the case will be tainted with the previous investigation, something which doesn’t happen in the Abbreviated Procedure, where the phase of investigation and the phase of trial are carried out by different organs. But let’s move on.

A criminal procedure can be initiated by three different ways: 1) A report in the police, the court, or the public prosecutor´s office, 2) A lawsuit with the help of a lawyer, or 3) An investigation initiated by the police, which finally reports the results of the investigation to the court, in this last case the police´s report has the same value of a report submitted by any other citizen (art. 297 LECrim), but as we will see later this general rule has exceptions too. Upon receiving the report or the lawsuit, the Examining Magistrate has to assess the facts related in them, this is the first filter of the procedure, all depends on how the Examining Magistrate regards them, if the facts may be defined as a crime by the Spanish Criminal Code (in Spanish Código Penal, henceforth CP) the Examining Magistrate should initiate an investigation (art. 308 LECrim), on the contrary, if the facts related in the report or lawsuit cannot be categorized according to any of the crimes contained in the CP, the procedure will conclude in limine. Once the investigation is initiated with the object of preparing the trial (art. 299 LECrim), as soon as from it results enough evidences against determined persons, it has to be putted into their knowledge (art. 118 and art. 384), this serves to guarantee their rights of defense, as to be assisted by a lawyer, be informed of the state of the investigation, the proofs which exist incriminating them, or even to participate in the investigation proposing others proofs (art. 311 LECrim), but above all in the Ordinary Procedure the putting into the knowledge of the suspect the existence of the investigation is accompanied by its acquisition of a new legal status, because it is committed for trial, an important milestone in the procedure, since without first having been committed for trial and having gave declaration as such, no-one can be accused. Besides, the committal for trial is the judicial resolution which for the first time establishes the subjective (the persons accused) and objetive (the facts) boundaries of the procedure. These measures guaranteeing the right of defense of the suspect, may be accompanied by other preventive measures which are aimed to assure its presence during all the procedure, as the detention or the provisional prison (art. 505 LECrim), or the integrity of its patrimony in order to satisfy the possible pecuniary liabilities which may result from the procedure (art. 589 LECrim). Does it mean that the suspect has always the right of being informed of the accusation against him and the development of the investigation? No, when the investigation has as object a public crime (those which can be investigated without the report of the victim and having as the only accusation the public prosecutor’s office ) the Examining Magistrate may declare total or partially secret the investigation, when it is necessary in order to avoid a grave risk to the life, liberty or integrity of other person, or when informing the suspect of the progress or even existence of the investigation may spoil it (art. 302 LECrim). Nevertheless, the Examining Magistrate is obliged by the LECrim to lift the secret of the investigation at least ten days before its ending for allowing the investigated the exercise of the rights of defense we have seen above.

The investigation cannot last forever, indeed the legislator has established a maximum period in which it has to be concluded on the art. 324.1 LECrim, which says that the investigation has to end within twelve months since its beginning, although is also true that the investigation can be extended for period of up to six months if it is accorded before the conclusion of its initial period or any of its extensions. And it is also true, that the Examining Magistrate is not obliged to exhaust the twelve months, the investigation can conclude as soon as has been practiced all the proofs necessaries for preparing the oral trial. The conclusion of the investigation marks the commencement of the intermediary phase of the procedure, where the Tribunal which will try the case decides whether to proceed with the opening of the oral trial or the dismissal of the cause (art. 632 LECrim). If we have to sum up the intermediary phase, we can do it as follows:

  1. Ended the investigation (art. 324.4 LECrim), the Examining Magistrate will dictate a resolution giving for finished the investigation (art. 622 LECrim).
  2. The parties of the procedure can, present a writing agreeing with the the Examining Magistrate´s resolution which ended the investigation, or asking for new proofs (art. 627 LECrim). If the parties agree with the resolution ending the investigation, can ask for the opening of the oral trial or the dismissal of the cause of any class.
  3. The Tribunal trying the case, taking into account the writings of the parties concerning the closing of the investigation, will dictate a resolution rejecting or confirming the Examining Magistrate´s resolution which ended with the investigation.
  4. If the Examining Magistrate´s resolution ending the summary is rejected, the Tribunal will point out the proofs which has to be practiced during the investigation.
  5. If the Examining Magistrate´s resolution ending the summary is confirmed, the Tribunal will resolve on the opening of the oral trial or the dismissal of the cause (art. 632 and art. 633 LECrim).

We have to add to the above something concerning the committal for trial (art. 384 LECrim), that until the Tribunal has not declare the opening of the oral trial (art. 632 LECrim) this resolution is provisional, therefore those who appear in it, and the facts which it contains can be modify along all the procedure until this precise moment.

The intermediary phase is short, and may seem less important than in reality is. I have said that, the Tribunal trying the case have three options: 1) To reject the conclusion of the investigation and to ask for new proofs, 2) The dismissal of the cause, or 3) The opening of the oral trial. Between these three options the second is especially relevant, for there are two types of dismissal, and although both give for concluded the investigation, one of them has the effect of res judicata. The acquittal on all charges (art. 637 LECrim) has the effect of res judicate, which means that the procedure has concluded and never can be opened again having the same facts and the same authors as their protagonist, on account of this importance, the judicial resolution which ends in this way the procedure has to pay great attention to its motivation, and can only do it based in three motives: 1) When there is not rational evidences of the crime, 2) When the facts are not regarded as crimes, and 3) When the prosecuted as authors, accomplices or accessory to the crime,  are exempted from criminal liability. On the other hand, the stay of execution (art. 641 LECrim), has not got the effect of res judicata, though in the practice its effects are akin to it, for the criminal process cannot not be opened based on the same proofs, there must be found new evidences in order to proceed to the reassessment of the case by the Tribunal, and upon which will be based a new resolution stating this time the opening of the oral trial or again its dismissal. The stay of execution can be accorded by the Tribunal for two reasons: 1) When the existence of the crime is not duly justified, and 2) When from the investigation has as a result the existence of a crime, but there are not enough motives to accuse a determined person or persons as authors, accomplices or accessory to the crime.

Having ended the intermediary phase, and having been discarded either the return to the investigation or the dismissal of the cause, the oral trial begins. It commences with the qualification of the crime (art. 650 LECrim), the parties, the public prosecutor’s office first (art. 649 LECrim), next the private prosecution (art. 651 LECrim), and finally the prosecuted (art. 652 LECrim) should qualify the crime, namely it consists in determining the facts, categorizing them according to a precept of the CP, and attributing them to its authors. For the private prosecution this is a special moment in the procedure, because for both the offended and the affected by the crime this will be their last opportunity of presenting themselves as a party of the procedure (art. 109 bis and 110 LECrim). Such provisional writings of qualification of the crime, should make us to recall the committal for trial (art. 384 LECrim), in which the Examining Magistrate delimited the subjective and objective boundaries of the procedure, and in reality both things are related, since the provisional writings of qualification of the parties should respect the boundaries marked by the committal for trial, they can exclude facts or even exclude those who have been committed for trial from their provisional writings of qualification, but they cannot include new facts or accuse other persons not previously mentioned as such in the committal for trial. During the qualification of the crime, the parties has the possibility for the first time of reaching an agreement, once the prosecution has qualified the crime the defendant can accept the punishment and the civil liability asked for (art. 655 LECrim) if they are within the boundaries established by the LECrim: up to six years of custodial sentence, in case of more than one defendant all have to agree with what has been asked for by the prosecution, and when there is more than one prosecution the defendant or defendants have to agree with the maximum punishment and civil liability asked for. If the agreement is not achieved either for being ilegal on account of surpassing the above mentioned limits or for the unwillingness of the parties, the procedure continues with the assessment by the Tribunal of the proofs proposed by the parties in their respective provisional writing of qualification (art. 650 LECrim), because such provisional writings of qualification besides serve to propose the proof (art. 656 LECrim) which the parties deem necessary to sustain their claims during the oral trial, at this point we can remember what I have said at the beginning of this writing, the only proof  able to destroy the presumption of innocence of the accused is the proof practiced during the ora trial, then what is the purpose of the proofs practiced during the investigation? to prepare the oral trial (art. 299 LECrim), to help the Examining Magistrate to delimit the facts and suspects in its committal for trial (art. 384 LECrim), save some exceptions which we will see later. Although the right to utilize the pertinent means of proof to its defense is a fundamental right according to the Spanish Constitution (art. 24.2), the Tribunal can reject those proofs proposed by the parties which are not related with the object of the process, following the criteria established by the own Spanish Constitution which talks only about the right pertinent means of proof, or in other words, the proofs related with the object of the process. The Tribunal can reject those proofs which may be deemed as illicit, too. And here we have the first exception, the art. 657.3 allows to the parties the proposing of proofs in their provisional writings of qualification which they consider should be practiced before the commencement of the oral trial, because they are afraid it will be imposible to practice them during the oral trial or their practice may suppose its suspension, these proofs, if they are accepted by the Tribunal, will be practiced in front of the Tribunal which should decide on the guilty or innocence of the accused, thus, the first principle which I have mentioned at the beginning of this writing will be fulfilled, The proof has to be practiced in front of the Tribunal deciding the case, and the others? With the exception of the practice of the proof during a public trial, the others will be fulfilled too, since both parties will have the opportunity of contradicting the proof, and the practice of the proof will be oral. Perhaps the next questions we have to solve are, how important are the provisional writings of qualification?, are they unchangeable? They are really important, we have to bear in our minds that what is out of the provisional writings of qualification cannot be discussed if it is a fact, and cannot be accused if it is a suspect, but it doesn’t mean they are unchangeable, we cannot close our eyes to the fact that during the oral trial the proof will be practiced and on account of its practice the parties would change their considerations regarding the object of the process, thus, the LECrim gives a new opportunity to the parties of qualifying the crime at the end of the oral trial (art. 732 LECrim), nevertheless the parties cannot make substantial changes with respect their previous qualification of the crime (art. 650 LECrim), the facts and the authors of the crime should be maintained, although those changes which don’t suppose a variation of the core of the facts discussed thus far, are permissible, as an extenuating circumstance or the degree of participation in the execution of the crime. Indeed, the LECrim in order to dissipate any defenselessness allows to the defendant to solicit the suspension of the oral trial for preparing its defense to the changes done by the prosecution (art. 788.5 LECrim), a procedure only established in the LECrim to the Abbreviated Procedure but whose application the Spanish jurisprudence has extended to the Ordinary Procedure. 

Once the parties of the procedure have qualified the crime (art. 650 LECrim) and proposed the proofs, and the Tribunal have decided on the validity of the proofs proposed by the parties (art. 659 LECrim), the date for the oral trial is also fixed (art. 659 LECrim). In this stage of the procedure is when is done effective the right to a public process guaranteed by the art. 24.2 of the Spanish Constitution as a fundamental right, here we have to take into account that the own Spanish Constitution establishes that this right may be subject to limitations (art. 120 CE). Until the commencement of the oral trial the knowledge to the development of the procedure is reserved to the parties (art. 301 and art. 302 LECrim), but from now on all of what is related with it is done public. This serves to reinforce the confidence of the citizens in the justice, making the procedure public everyone has not only access to the final result, the sentence, but to the way in which the Tribunal has formed its conviction. Nevertheless, this right can be restricted when it enters into collision with other fundamental rights guaranteed by the Spanish Constitution, chiefly the right to the intimacy (art. 18.1 CE) and the right to the moral and physical integrity (art. 15.1 CE) of the victim of the crime, in these cases, the Tribunal may restrict the information springing from the procedure and the attendance to the session of the ora trial (art. 680 LECrim), even of the media (art. 681 LECrim) provoking the collision of the interests of the victim with other fundamental right, aside to the right to a public process, the right to communicate and to receive freely information (art. 20.1 CE).

On the day announced the oral trial begins (art. 659 and art. 688 LECrim), but we have to wait yet to the practice of the proof. At the onset of the sessions of the oral trial the Tribunal will give another opportunity to the parties to reach an agreement regarding the punishment and the civil liability derived from the crime. By means of this, the legislator is trying again to avoid a long and costly procedure, where the administration of justice and the parties will waste many resources, above all time and money. Of course, not every agreement is possible, it has to be within the boundaries marked by the LECrim, which mainly are the same previously stated in the art. 655 LECrim: up to six years of custodial sentence, in case of more than one defendant all have to agree with what has been asked for by the prosecution, and when there is more than one prosecution the defendant or defendants have to agree with the maximum punishment and civil liability asked for. The Tribunal will be in charge of assuring that the agreement of the parties is within the boundaries of the law. Here we have to comment three details we have not commented before: 1) The conformity of the defendant cannot be regarded as a confession, in reality is a sort of transaction between the prosecution and the defendant, 2) In the practice is possible to obtain only the conformity of part of the defendants, if the Tribunal bases its sentence to condemn those who have not conform with the prosecution in the proof practiced during the oral trial, and 3) It is possible to obtain an agreement between the prosecution and the defendant out of the two moments expressly established in the LECrim (art. 655 and art. 688 LECrim), in other words, the parties may have reached an agreement but it has surpassed the boundaries marked by the law, or the parties may have not reached an agreement before the commencement of the oral trial or on its beginning, but they may have reached it later, in both cases the proof practiced during the oral trial will be simplified, since the parties will reduce the practice of the proof to what is strictly necessary (perhaps only the confession of the accused), and their final writings of qualification of the crime will coincide (art. 732 LECrim). 

Therefore the practice of the proof only occurs when the parties have not reached an agreement or when it is illicit (art. 701 LECrim), we should recall here the general rule with which was started this writing, the only proof able to destroy the presumption of innocence of the accused is the proof subjected to contradiction and practiced in a public, oral trial, in front of the Tribunal deciding the case, save some exceptions. Of all the proofs the testimony is the more regulated due to its importance: a witness has the obligation of testifying during the oral trial (art. 416 and art. 702 LECrim); the witness has to be putted in solitary confinement until it has testified (art. 704 LECrim), although according to the Spanish jurisprudence the breaching of this disposition doesn’t affect to the validity of the proof, just upon the credibility of the witness; the witnesses have to testify one by one (art. 705 LECrim); the Tribunal has the obligation of warning it of its exemption when the LECrim offers to it the possibility of not to declare (art. 707 LECrim), on the contrary its testimony would have to be regarded null and void by the Tribunal, this occurs in three cases: 1) When the accused and the witness are family (art. 416 LECrim), 2) The priests, on the facts which has been revealed to them on account of their functions, the public servants, when they cannot testify without breaching their obligation of secret, and the physically and mentally handicapped (art. 417 LECrim, and 3) A witness cannot be oblige to reply a question whose answer may be detrimental to a member os its family (art. 418 LECrim), moreover this same exemption has to be offered to a witness before presenting a report (art. 261 LECrim), and during the investigation (art. 416 LECrim), and the renouncing of this exemption during one of these stages doesn’t preclude the possibility of exercising its right to not testify later; the Tribunal has the faculty of making questions to the parties (art. 708 LECrim), but it has to be exercised by the Tribunal without forsaking its position of neutrality, this faculty only serves to amend the deficiencies of the parties practicing the proof, but cannot be used to usurp their position in the procedure by the Tribunal; the testimony given by a police officer will be assess by the Tribunal according the the rules of the rational criterion (art. 717 LECrim), the Spanish jurisprudence has established that it can be enough to destroy the presumption of innocence of an accused, save when the police is part of the procedure as victim or accused, in such cases the their testimony should be assessed by the tribunal in conjunction with the rest of the proof available. 

But what is a witness? perhaps is too late to answer this question after all the rules I have just mentioned, however, now is more necessary than ever, if not how I will explain what is a testimony of reference? A witness is a person who has perceive the commission of a crime by means of its senses, a witness can give an account of what it has seen, or listened, o smelled by itself. But they are not the only ones allowed by the law to testify, there is a second class of witness, the witness of reference (art. 710 LECrim), a person who has known about the crime by means of what other person has related to it. However, the worth of the testimony given by a witness of reference cannot be compered with one given by a direct witness, the Spanish jurisprudence has said that the witness of reference has a limited value, it can be utilized only to complement what has been testified by a direct witness or when a direct witness cannot be found in order to give its testimony during the oral trial, furthermore the testimony of a witness of reference cannot be the only proof in which is based a sentence condemning an accused. Achieved this point is the moment to delimit even more the concept of what is a witness, a witness has the obligation of saying the truth during the investigation and later during the oral trial (art. 446 LECrim), a witness is the victim a the crime too. On the other hand, the accused, those who previously have been committed for trial (art. 384 LECrim), cannot be regarded as witnesses, they don’t have the obligation of saying the truth, in fact they can lie without legal consequences, the are assisted by two fundamental rights of the Spanish Constitution, the right to not testify against themselves and the right to not confess themselves as guilty (art. 24.2 CE).

Now is the moment all of you were waiting, the exceptions. I have repeated more than a couple of times for me the most important rule, the rule which should be fixed in your mind after reading this writing, and I am going to repeat it again, the only proof able to destroy the presumption of innocence of the accused is the proof which is practiced during the oral trial, but what are the exceptions to this general rule? There are more than one exception, I have already mentioned one which takes place during the qualification of the crime, the parties can ask for the practice of those proofs which they are afraid will be of impossible practice during the oral trial or will motivate its suspension (art. 657.3 LECrim), but this exception is not the best example because the proof is still practiced in front of the Tribunal which is trying the case. What happen with the proofs practiced during the investigation of the crime which are practiced in front of the Examining Magistrate?, do they serve only to prepare the oral trial?, are there proofs which can be practiced without the presence of the Examining Magistrate? Let´s try to answer these questions. We can make three big groups when we talk about preconstituted proof, which is the proof previously constituted as proof before the commencement of the oral trial, the witnesses, the expert´s report, and the police´s report. Each of them is introduced in the oral trial by different means. 

Following the aforementioned order, I will start with the testimonies given during the investigation. There are two cases where the LECrim allows the use as a proof of a testimony given during the investigation: 

Let´s talk more about the art. 730.2 LECrim. Until the reform of the LECrim by means of the Organic Law 8/2021 the general rule was the presence of the minor in the oral trial, according to the jurisprudence of this period, that the victim of the crime was a minor could not justify a degradation of the guarantees which assist to all the accused in a Criminal Procedure, the main concern was that all the witnesses should testify in front of the Tribunal judging the case, but this general rule was not unchangeable, the minor could avoid to testify during the oral trial be means of an expert´s report which stated how harmful was its assistance to his physic health, because this expert´s report would be utilize by the Examining Magistrate to base its resolution exempting the minor of the assistance. Now this procedure is only applicable to those who are older than fourteen years, but younger than eighteen years old. Another thing we have to take into account are the requisites of the art. 449 bis, the declaration of the minor, or of those who testify under the art. 448, have to be subject to contradiction at least by the presence of the accused´s lawyer during the testimony, and the proof have to be documented in a means which allows the recording of sound and image, and which later will be utilize to introduce the testimony into the oral trial by reproducing it (art. 730.2 LECrim). We can follow this thread even more, the Spanish jurisprudence has talked about four requisites which are essential to make a testimony given during the phase of investigation valid: a) There must be a legitimate cause which impedes the reproduction of the testimony during the oral trial, b) The Examining Magistrate must intervene, c) The accused´s lawyer must subject to contradiction the testimony, and d) The introduction of the testimony into the oral trial by means of the reproduction of the audiovisual recording done during the testimony in the investigation. Then, according to the above, can be utilized as proofs the testimonies given during the investigation only to the police? Evidently no, they are not given in the presence of the Examining Magistrate, indeed in order to dispel any doubts the Second Chamber of the Supreme Tribunal (in Spanish la Sala Segunda del Tribunal Supremo) reached an agreement which in essence stated that: 1) The testimonies given in front of the police has not value as proof, “) They cannot corroborate other means of proof, 3) They cannot be introduce into the oral trial by menas of the art. 714 or the art. 730, 4) They cannot be introduce into the oral trial by means of the testimonies of the police officers.

Now is the turn of the Expert´s report. Such reports are elaborated during the investigation when the Examining Magistrate needs help to interpret an evidence, the Experts contribute with their expertise in a subject-matter as in science or art (art. 456 LECrim). The Expert´s report can be regarded as a proof in two different ways, it depends of how the parties of the procedure react to it. The Expert´s report has to be impugn in the provisional writing of qualification (art. 650 LECrim) by the party which doesn’t agree with it, in order to provoke the assistance of the Expert who elaborated the report in the oral trial, there the Expert can be asked on the report by the parties of the procedure (art. 724 LECrim) and even by the Tribunal since the Spanish jurisprudence has understood applicable the art. 708 LECrim which endows the Tribunal with the faculty of making questions to the witnesses, we will come back on this later. On the other hand, when the Expert´s report is not impugned by any of the parties the Tribunal will introduce this proof by means of the art. 726, because in these cases the Expert´s report is regarded as documentary proof. In this latter case, the Expert´s report is deemed as a preconstituted proof which doesn’t need to be practiced during the oral trial to be taken into account by the Tribunal in the motivation of its sentence. Before ending with the Expert´s report, I feel obliged to specify that the Tribunal is free at the hour of assessing it, the Tribunal is not bound by its content, the Expert´s report will be assessed by the Tribunal under the principle of free assessment of the proof as the rest of the proofs (art. 741 LECrim).

The Police´s report has an akin solution to the Expert´s report. A Police´s report may contain objective data and proofs of impossible repetition which fit within the definition of preconstitute proofs, as the level of alcohol in the blood, the tools or instruments of a crime, the proof of the body, or an sketch of the land, between others. In these specific cases, these data will be also considered by the Tribunal as proof valid to destroy the presumption of innocence of an accused without the necessity of subjecting the proof to contradiction by the parties during an oral, public, trial. The Tribunal can assess this proof by means of the art. 726 LECrim, as in the case of the Expert´s report when it is not impugned.

I have left for the end, another exception. The proofs, as a general rule, has to be proposed by the parties in their provisional writings of qualification of the crime (art. 650 LECrim), this is what the art. 728 seems to say.  But there are three exceptions:

1) The confrontation between witnesses or between those who have been committed for trial: The confrontation is also a proof which appears regulated during the investigation of the crime (art. 451 LECrim), and which has maintained its essence during the oral trial (art. 713 and art. 729 LECrim), because it continues being a faculty of the Tribunal and of subsidiary character with respect to other proofs.

2) The proofs which has not been proposed by any of the parties, but which the Tribunal regards as necessaries to confirm any of the facts which have been the object of the provisional writings of qualification of the parties (art. 650 LECrim): This faculty is really important, since gives to the Tribunal the opportunity of practicing new proofs which previously has not been solicited by any of the parties. Here the Tribunal, as with the faculty granted to it by the art. 708, is forbidden to leave its neutral position in the procedure, it cannot adopt the position of the prosecution or the defendant, the proofs proposed by the Tribunal can only serve to clarify some aspect which has not been enough explained by the proofs solicited by the parties.

3) The proofs of any kind which in the act are offered by the parties in order to confirm some circumstance which may influence the probatory worth of the testimony of one witness, if the Tribunal regards them admissible: According to the LECrim this is the only moment in which the parties may solicit new proofs, aside their writings of provisional qualification of the crime (art. 650 LECrim). But the Spanish jurisprudence has extended to the Ordinary Procedure, the possibility already available in the LECrim for the parties during the Abbreviated Procedure of proposing new proofs at beginning of the sessions of the oral trial (art. 786.2 LECrim).

Conclusions:

  1. The proofs practiced during the phase of investigation as a general rule cannot destroy the presumption of innocence of the accused.
  2. The only proofs which are able to destroy the presumption of innocence of the accused are those practiced during the oral trial.
  3. Exceptions to the two aforementioned general rules: 1) Witnesses who have testify under articles 448 and 449, 2) Witnesses who have changed their testimony (art. 714 LECrim), 3) The Expert´s report when has not been impugned (art. 726 LECrim), and 4) The Police´s report when contains objective data and proofs of impossible repetition (art. 726 LECrim).
  4. The parties has three opportunities of proposing proofs: 1) In their provisional writings of qualification of the crime (art. 656 LECrim), 2) During the oral trial when the proof proposed may influence the probatory worth of the testimony of one witness (art. 729 LECrim), 3) At beginning of the sessions of the oral trial (art. 786.2 LECrim).
  5. The Tribunal has two faculties which above all may spoil its neutrality, the faculty of asking questions to the witnesses (art. 708 LECrim), and the faculty of proposing new proofs (art. 729 LECrim). In both case the Tribunal has to be careful, they can only be utilized to clarify a question which has not be enough clarified by the practicing of the proof of the parties.
  6. The publicity of the procedure begins with the opening of the trial (art. 649 and art. 680 LECrim).
  7. The procedure can finish before the practice of the proof if the defendants agree with the punishment and civil liability asked for by the prosecution. This agreement can be reached in two moments, during the provisional qualification of the crime by the parties (art. 655 LECrim), and at the beginning of the oral trial (art. 688 LECrim).

Víctor López Camacho.

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