The way of practicing the proof during the oral trial (V) (Spanish Law)

Fifth Section. Common Articles to the previous four sections (art. 728 – art. 731 bis LECrim)

The Spanish Criminal Procedural Law (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), divides in five sections the chapter which has as object to regulate the way of practicing the proof during the oral trial of the Ordinary Procedure (without prejudice of what is disposed for the special procedures, the Ordinary Procedure is applicable to the crimes punished with more than nine years in prison or to whatever other punishments of different nature of any amount or duration (art. 757 LECrim)). The first gives the parties of the procedure the opportunity of reaching an agreement and of ending the procedure before the practicing of the proof, the second presupposes the commencement of the procedure because the above agreement was impossible, either due to the disagreement of the parties or due to the fact that the agreement was not allowed by the law, and it treats of above all the testimony of the witnesses during the oral trial, the third is focused on the Expert´s report, how it is introducen into the oral trial, the fourth is about the documentary proof and the visual inspection, and finally the fifth is a section which contains articles applicable to the previous four.

Let´s start from the beginning. The section fifth begins with the article 728, it says that during the oral trial will be only allowed to practice the proofs previously solicited by the parties in their respective writings of provisional qualification of the crime (art. 656 LECrim). However, the next article, the article 729, contains three exceptions to the aforementioned general rule:

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 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).

The next article is the article 730, which is divided into two sections, the first is about the reading or reproduction at the request of any parties of the proofs practiced during the investigation of the crime, and which are of imposible reproduction during the oral trial. Here the limits are not very clear, in order to understand better this article we have to direct our attention to the article 726, which allows to the Tribunal the use of some proofs to destroy the presumption of innocence of an accused without the necessity of their repetition during the oral trial. Basically these are two kinds of proofs, the Expert´s report and the Police´s report. The former can be used by the Tribunal to sustain its future sentence by means of the article 726, when the Expert´s report has not been impugned by any of the parties, on the contrary, when the Expert´s report has been impugned the Expert must assist to the oral trial in order to support its content. The latter, normally has the same value of a report presented by any other citizen, but sometimes it may contain objective data or proofs of impossible repetition (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 last two cases, this part of the Police´s report will be consider as a valid proof to destroy the presumption of innocence of an accused without the necessity of its repetition during the oral trial, by means of the art. 726. Therefore, the proofs which need to be repeated during the oral trial according to the article 730.1, will be those which are out of the scope of the article 726.

The second section of the article 730, is regarding the testimony of the witnesses, when it has been given during the investigation of the crime, but cannot be repeated during the oral trial. This can occur due to two motives:

1. When the witness has manifested during the investigation that he has to leave the country, or when there are reasons to be afraid of the mental or bodily health of the witness (art. 448 LECrim).
2. When the witness is a minor with less than 14 years, because in these cases the Examining Magistrate is obliged to gather the testimony of the witness before the commencement of the oral trial (art. 449 ter). If the witness is a minor but has more than 14 years, the Examining Magistrate will decide on the attendance of the minor to the oral trial, based on an Expert´s report.

In both cases, the testimony has to fulfill three requisites (art. 449 bis): 1) It has to be given in front of a Judge, 2) It has to be subjected to contradiction, at least the denfendat´s lawyer has to be present during the practicing of the proof, and 3) It has to be recorded by a means which allows the reproduction of video and audio.

Finally, the article 731 bis allows the attendance of the witnesses, of the expert, and even of the prosecuted, by means of video conference, when this attendance can be harmful or costly for them, specially when it can be contrary to the mental health of a minor. The decision is a faculty of the Tribunal, and cannot be understood as a right of the those who solicit it.