Perhaps it is the first time you listen it, the criminal procedure is of progressive crystallization. If not it means that you have the same hobby I have, to read Spanish jurisprudence, because it is probably the most repeated phrase in the Spanish judicial resolutions. But what does it exactly signify? In order to answer this question we need to start from the beginning of the procedure. A criminal procedure has three ways of being initiated, a report of any citizen, a Police´s report (art. 297 of the Spanish Criminal Procedural Law, in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), or a lawsuit. In each case, the first filter is the same, the Examining Magistrate will subject the facts related in the report or lawsuit to analysis in order to determine whether the may be regarded as a crime according to the Spanish Criminal Code (in Spanish Código Penal, henceforth CP). Then, the Examining Magistrate at the onset of the procedure have two options, to admit the report or lawsuit, or to dismiss it (art. 269 and art. 313 LECrim). Thus the criminal procedure truly starts once the report or lawsuit has been admitted, since their admission supposes the initiation of the investigation (art. 308 LECrim) through which the proofs justifying the existence of the crime will be gathered (art. 299 LECrim). This is the first milestone of the procedure, the admission of the report or lawsuit serves to delimit the object of the procedure, the crystallization of the procedure has begun. The proofs obtained during the investigation has the purpose of only preparing the oral trial, save some exceptions of preconstitute proofs which are those of imposible repetition during the oral trial, the only proofs capable of destroying the presumption of innocence of the accused are those practiced during a public, oral trial, in front of the Tribunal trying the case and subjected to contradiction by all the parties of the procedure. Mainly these exceptions are three: 1) Testimonies of imposible repetition (art. 448 LECrim) or of minors with less than fourteen years (art. 449 ter LECrim), 2) A Expert´s report which has not been impugned by the parties (art. 726 LECrim), and 3) Those parts of a Police´s report which are regarded as objective data and proofs of impossible repetition (art. 726 LECrim). But the general rule is the aforementioned, a proof has to be practiced in the oral trial in order to destroy the presumption of innocence of the accused. Nevertheless, the proofs obtained during the investigation will confirm or not, the initial suspicions of the Examining Magistrate, if the proofs justify the existence of a crime and its attribution to a determine person, the Examining Magistrate is oblige to dictate the second resolution which contributes to the crystallization of the process, the committal for trial (art. 384 LECrim). The committal for trial has two purposes: 1) It grants to the investigated the status of committed for trial, making to arise its rights of defense, as to choose a lawyer of its election, or to participate in the investigation, and 2) The committal for trial is the second milestone which contributes to the crystallization of the procedure, it delimits the object of the procedure now by a judicial authority and with the backing of some proofs, the facts which constitute the crime and the persons to whom are attributed are expressly stated in the committal for trial. Upon the closing of the investigation by the Examining Magistrate, taking for granted that the crimes investigated have to be tried according to the rules of the Ordinary Procedure (art. 757 LECrim), the Tribunal trying the case has to decide whether to continue the investigation, to dismiss the case for lack of proofs, or to open the oral trial. If the Oral trial is opened, it begins with the provisional qualification of the crime by the parties of the procedure (art. 650 LECrim), for in a criminal procedure there has to be a prosecution alien to the Tribunal trying the case, although at the onset of the procedure the boundaries are some how diffuse bestowing on the Examining Magistrate the liability of accuse through the committal for trial, with the opening of the oral trial the boundaries are really clear, there is a prosecution accusing, and there is a Tribunal judging the case from a position of neutrality. But coming back to the provisional qualification of the crime by the parties, this is the third milestone which contributes to the progressive crystallization of the procedure, in their writing the parties have to establish the facts, the persons to which are attributed, and their classification in accordance with the CP. Notwithstanding, they are not altogether free, the parties´ writings of provisional qualification of the crime has to be within the boundaries previously marked by the Examining Magistrate through its committal for trial, these clearly shows the great power, and the paper of accusation, which has the Examining Magistrate as the predominant figure at the beginning of the procedure. The parties´ writings of provisional qualification of the crime, fix the discussion during the oral trial, but has also a second function, with the qualification of the crime the parties have to propose the proofs which should be practiced during the oral trial (art. 656 LECrim). This is the object of the oral trial, the essence of all the procedure, the practice of the proofs on a public trial where all the citizens are allowed to enter. Inevitably the practice of the proof during the oral trial will have effects upon the parties´ writings of provisional qualification of the crime, therefore the LECrim allows to the parties to change their provisional qualification at the the of the oral trial, on their writings of definitive qualification of the crime (art. 732 LECrim). We have reach to the fourth milestone which contributes to the progressive crystallization of the crime, for the parties´ writings of definitive qualification of the crime establish the boundaries which the future sentence ending the procedure has to respect. Here should be answer two questions, how important can be the changes on the parties´ writings of definitive qualification of the crime with respect their provisional qualification? and until what point the future sentence ending the procedure has to follow the path marked by the parties´ writings of definitive qualification of the crime? And in a broad sense, both questions can be answer with the same reply, the essence of the crime tried has to be respected, this essence are the facts and the persons liable of them. Nevertheless I going to try to be more precise. Let’s start answering with the former question, the prosecution may make important changes, respecting as I have said the essence of the facts and the persons liable, and the defendant can solicit the suspension of the trial in order to prepare its reply to these changes, even proposing new proofs (art. 788.5 LECrim), this faculty of the defendant is more important than may appear at first glance, because has to be exercised as a condition to a future impugnment of the sentence based on the changes done by the prosecution in their respective writings of definitive qualification of the crime. The reply of the latter question has concerned above all with the possibility of the Tribunal of changing the classification of the crime done by the accusation, and it is possible if the Tribunal qualify the crime with an homogeneous classification, according to the Spanish Constitutional Tribunal, the crime homogeneous are different modalities but close within the criminal classification, having gave the defendant the opportunity of defense with respect each of the elements which constitute the new classification of the crime.
I am aware that this is the first new paragraph in all the writing up to this juncture, I hope that you know how to forgive me, and I promise that the next time it will arrive sooner. After the practice of all the proof on the oral trial, the defendant has a new opportunity of talking in front of the Tribunal trying the case, usually the defendant will have given its version of the facts along with the rest of the witnesses, but due to its special position inside the procedure the LECrim allows the defendant to be the last person with the right to talk (art. 739 LECrim). This right cannot be denied by the Tribunal to the defendant, a trial where this right has not been respected must be declared null and void without needing the defendant to allege how the infringement of this right has affected its defense. The right to the last word in a trial is a peculiar manifestation of the right of defense of the defendant, who does not have only the right of being assisted by a lawyer, but also has the right of defending itself without any intermediary.
The oral trial ends with this solemn act of the defendant making use of its right to the last word. Now it is the turn of assessing the proof by the Tribunal. The Tribunal assesses the proofs practiced during the oral trial according to the principle of free assessment of the proof (art. 741 LECrim), it is indifferent if the proof is a testimony, a document or an Expert´s report, because the Tribunal is not oblige to believe any of them, the only path the Tribunal must follow, is the path marked by the rules of the logic, of the science and of the reason. With the general rule that the only proof capable of destroying the presumption of innocence of the accused is the proof practiced during a public, oral trial, and subjected to contradiction by all the parties, the principle of free assessment of the proof by the Tribunal is maybe the most important, because the following instances, for example an appellation, will have to respect the assessment done by the first Tribunal trying the case, since this is the Tribunal which has had the immediacy necessary to assess the proof properly, above all when the proof assessed is a personal proof as a testimony. Of course that there are exceptions, for example if new proofs appear, or when the assessment done by the first Tribunal is contrary to the reason or the science, but this exceptions will be difficult to find, and normally the assessment of the first Tribunal trying the case will be the assessment which will prevail until the end of all the appeals to its sentence. Now you can make an idea of the importance of this assessment and of the the first Tribunal trying the case. Notwithstanding the liberty of the Tribunal assessing the proofs, the are some rules which the Spanish jurisprudence has built to protect the right to a process with all the guarantees of the defendant (art. 24 of the Spanish Constitution), the first is the respect to the right to the presumption of innocence of the accused (art. 24.2 of the Spanish Constitution), the proof has to be obtained legally, it has to be practiced in a public, oral trial, and subjected to contradiction by all the parties, and the sentence has to duly motivate how these proofs have destroy the presumption of innocence of the accused, this right to the presumption of innocence of the accused is besides linked with the principle in dubio pro reo, according to which if the Tribunal has doubts upon the innocence or guilt of the accused the only possible sentence is the acquitting of the accused. The second is the three requisites which the testimony of a witness has to comply to destroy the presumption of innocence of an accused, it has to be permanent in the time, it has to be corroborated by objective proofs or data, and the relation of the accused with the witness has to be void of any resentment which may motivate its testimony. It does not mean that fulfilling these three requisites a testimony should be regarded as true, but at least them serve as a guide to the labour of the Tribunal.
To end this writing we cannot forget the article 743, it states that the oral trial must be recorded through a means which allows the recording of sound and image. Although in the event that the Tribunal has not have any of these means, will be enough with the minutes of the “Letrado de la Administración de Justicia”, a public servant which helps the Tribunal in its labour trying the case. Here the problem arises when the trial has been recorded but the recording is defective, until what point this defect in the recording can motivate declaring the sentence which ended the procedure null and void by a second or third instance? It all depends on how important is this defect, if the defect does not allow in appealing to review the allegations of the party impugning the sentence, the sentence has to be declared null and void on account of this defect. Nevertheless, the charge of proving how this defect has provoked its defenselessness is still of the appellant.