Fourth Section. The documentary proof and the visual inspection (art. 726 – art. 727 LECrim):
The practicing of the proof during the oral trial depends on the sort of proof, the witnesses are obliged to attend to the oral trial, the experts only when their informs have been impugned by the parties, but and the documentary proof?, does it follow the same rules?, how is it assessed by Tribunal with the rest of the proofs?
We have to begin explaining that the general rule is that a proof has to be practiced during the oral trial for destroying the presumption of innocence of the accused (art. 24.2 of the Spanish Constitution), is during the oral trial where the principles which should govern the practice of all proof are made effective, the principle of contradiction (the parties has to have the opportunity of contradicting the proof proposed by their counterpart), the principle which guarantees that all proofs shall be practiced in front of the Tribunal trying the case, the principle of publicity (the proof must be practiced during a public trial), and the principle of orality (the proof must be practiced orally). But this seems to not be in accordance with what is established in the art. 726 LECrim, which doesn’t mention the intervention of the parties, or a public, oral, trial, it just says that the Tribunal will examine on its own the books, documents and another evidences which may contribute to the clarification of the facts. Then, what has happened here with the aforementioned principles?
In order to answer the above question, let’s distinguish two kinds of proofs, because they are the proofs which mainly will be assessed by the Tribunal by means of the article 726 LECrim, the expert´s report and the police’s report, although in both cases the final solution is the same. The expert´s report is elaborated during the previous phase of the Criminal Procedure, during the investigation of the crime, and is ordered by the Examining Magistrate when this is necessary for clarifying some aspect of the investigation which requires an special knowledge on certain subject. Such expert´s report has two different faces and all depends on the attitude of the parties regarding it, if the parties affected by the expert´s report don’t impugn it in their respective writings of provisional qualification of the crime (art. 650 LECrim), it will be regarded by the Tribunal as documentary proof, being allowed the Tribunal to use the art. 726 LECrim, for deeming the expert´s report as a proof valid for destroying their presumption of innocence without taking into account their opinion. On the contrary, if the parties affected by the expert´s report impugn its content, the expert must attend the oral trial for supporting his report answering the questions about it made by the parties and the Tribunal. In this latter case, the expert´s report will be regarded by the Tribunal as personal proof, and the principles which I mentioned at the beginning of this writing will be totally applicable to it.
The police’s report, as I said, has an akin solution. A police´s report normally has the same value of a report made by any other citizen, but sometimes a police´s report may include objective data or proofs of impossible repetition during the oral trial, 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.
On the other hand, the art. 727 LECrim, has not got anything special, it regulates the practicing of an visual inspection during the oral trial, when it has not been previously practiced during the investigation of the crime. In these cases, the Tribunal will be moved to the place where the visual inspection has to be carried out.