Antes y después: New Working Paper

09/30/20 (written by lcalderon) – Justice in Mexico, a research-based program at the University of San Diego, released a working paper by Juan García Cruz entitled, “Antes y Después: Análisis comparativo de casos de sistema de justicia penal tradicional y del sistema acusatorio”. The study is a result of the #compara project that compiles a series of indicators curated by Justice in Mexico as part of the “Justicia en Marcha” initiative to measure the implementation and consolidation of the Accusatorial Criminal Justice System (Sistema de Justicia Penal Acusatorio, SJPA). Specifically, the paper compares and analyzes some of the main procedural differences between the Traditional Inquisitorial Criminal Justice System (Sistema de Justicia Penal Tradicional Inquisitorio) and the SJPA. To make this comparison possible, the author draws on three specific cases that share important similarities and were processed under the two different criminal justice systems. The results suggest that there is an apparent consolidation of the SJPA —at least from an analytical perspective— that allows several benefits that were not possible under the traditional system.

In order to select the cases to compare, García Cruz developed a methodology that consisted in finding cases from both criminal justice systems that were as similar as possible and allowed to highlight some of the key elements of each process. The main criteria evaluated were:

  • Type of crime
  • Number of defendants
  • Conclusion of the criminal proceeding (oral trial or ordinary process)

After describing the selection process, García Cruz analyzes the compiled information. For the traditional system, the author needed to conduct an exhaustive revision of all court records or each case. For the SJPA, the author conducted an extensive record analysis as well as reviewing court recordings for each case. Based on this analysis, García Cruz identified 7 main indicators that allowed comparing the different procedures for each system:

  • Evidence
  • System principles
  • Process duration
  • Victim treatment and the role of the complaining party
  • Volume (size of the court records)
  • New figures
  • Judges’ impartiality

The working paper examines the procedural differences in three crime types: kidnapping and organized crime; fuel theft; and crimes against public health.

Methodology for selecting the compared cases

Main Findings

Evidence

  • Most of the evidence presented under the SJPA consisted of testimonies. Documents and court records are not considered in the SJPA unless they are mentioned and properly incorporated by the appropriate party during direct examination.
  • Under the traditional system, most of the evidence consisted of written documents and statements. In addition, the evidence value of such statements was pre-determined under the Criminal Procedures Code (Código de Procedimientos Penales).
  • Presenting testimonies under the SJPA allowed for the participating parties to conduct direct and cross-examinations to the witness, a benefit that was not possible under the traditional system.
  • The total amount of evidence presented under the SJPA was significantly lower than in the traditional system. In addition, evidence under the traditional system was diverse and consisted of statements, testimonies, testimony complements and additions, court records and official documents, and ratifications, while under the SJPA most of the evidence consisted of testimonies.

Figura 1: Pruebas (Comparativo I)

Total amount of evidence under the traditional system and the SJPA for kidnapping and organized crime

Figura 2: Pruebas (Comparativo II)

Total amount of evidence under the traditional system and the SJPA for fuel theft

Figura 3: Pruebas (Comparativo III)

Total amount of evidence under the traditional system and the SJPA for crimes against public health

System principles

  • Cases analyzed under the SJPA emphasize the presence of main system principles such as: contradiction and immediacy.
  • While procedures under the traditional system were considered public, institutions often denied the presence of external people. Under the SJPA, the public is welcome to attend,including the defendant’s family and law students.
  • In cases under the SJPA it was also possible to identify the principles of consolidation and continuity.

Process duration

  • In the three comparisons, cases under the SJPA required less time than cases under the traditional system.
  • In terms of complementary investigations, all SJPA procedures were concluded before the legal six-months limit. This limit was not met on cases under the traditional system, resulting in significant delays in the process.

Victim treatment and the role of the complaining party

  • In the kidnapping and organized crime case under the SJPA, all victims intervened through their legal advisors throughout the process and had their image protected (blurred) during the oral trial, where they provided testimony from a different courtroom. Under the traditional system, however, victims were required to face their aggressors, allowing re-victimization.
  • The role of the legal advisor was key in cases under the SJPA, where they were able to be in all the proceedings, offer evidence, and examine witnesses, among other benefits that were not possible under the traditional system.

Volume (size of the court records)

  • The orality factor of the SJPA allowed for smaller court records, while the traditional system required all in writing, making up large volumes of court records.
  • In addition, cases under the SJPA have their court proceedings recorded on video, rather than paper.

Figura 7: Volumen (Comparativo I)

Volume Comparative I
Total number of pages in court records for kidnapping and organized crime

Figura 8: Volumen (Comparativo II)

Volume Comparative II
Total number of pages in court records for fuel theft

Figura 9: Volumen (Comparativo III)

Volume comparative III
Total number of pages in court records for crimes against public health

New Figures

  • Judges under the SJPA are required to ensure the right to adequate defense, giving them the authority to substitute the defense if they do not meet the standard. Under the traditional system, defendants could be represented by a trustee without requiring the legal certifications to provide an efficient defense.
  • In the case of crimes against public health, there was also the use of stipulations of facts under the SJPA. This allows the court to disregard incontrovertible facts and focus the debate to make the process faster.

Judges impartiality

  • In cases under the SJPA, judges were not involved in the previous stages of the oral trial, allowing them to resolve the matters based on facts presented during the proceeding. Under the traditional system, the same judge was in charge of preliminary proceedings and sentencing, making it complicated for the judge to stay unbiased and reconsider his rulings.

Final thoughts

Lastly, the author offers a series of final considerations, emphasizing the importance of studying and understanding the different nature of both systems in order to measure the consolidation of the SJPA and assess the benefits presented by the accusatorial system.

About the author:
Juan García Cruz is a Mexican attorney. He graduated from the School of Law at the National Autonomous University of Mexico (UNAM) where he also completed a graduate diploma on Criminal Law. Mr. García studied
Criminalistics, and got a Masters of Criminal Procedural Law and Oral Trials by the Universidad Analítica Constructivista de Mexico (UNAC). He is a Research Associate at the University of San Diego’s Justice in Mexico
Program. He has collaborated with non-governmental organizations dedicated to human rights training and analysis of the criminal justice system in Mexico. He has also actively collaborated at UNAM’s Human Rights Program. Currently Mr. García is an Auxiliar de Gestión Judicial at the Federal Criminal Justice Center Mexico City. His academic and professional interests include criminal justice, transitional justice and human rights.

Justice in Mexico presents findings from 2017 Justiciabarómetro report to a Mexican delegation

11/22/17- On Thursday, November 16, 2017 the Justice in Mexico program welcomed a delegation of Mexican law professors and experts sponsored by the U.S. State Department and hosted by the San Diego Diplomacy Council and offered a presentation of the results of the 2016 Justiciabarómetro survey of Mexican judges, prosecutors, and public defenders.

The State Department-sponsored visit was organized by the San Diego Diplomacy Council through the Global Ties network. The delegation comprised a group of twenty law professors, judges, researchers, and administrators from several institutions located in ten different states throughout the country, including law schools and graduate degree programs.

On behalf of the Justice in Mexico program, David Shirk and Octavio Rodriguez presented a  PowerPoint presentation of the results of the 2016 Justiciabarómetro survey of Mexican judges, prosecutors, and public defenders. A full list of the members of the delegation is provided below.

The Justiciabarómeter is an innovative diagnostic tool for analyzing the criminal justice sector through the eyes of the professionals who serve in key positions within the system, including judges, prosecutors, public defenders, and police.

Members of the delegation were especially interested in the research methodology and raised several questions about the findings, which generally noted the increased support among judicial sector professionals for the country’s transition to a new oral, adversarial model of criminal procedure in 2016.

Universidad Autonomá de Baja California (UABC) delegate Jorge Díaz Zazueta, who collaborated with Justice in Mexico for the implementation of the survey, noted that the Justiciabarómetro provides invaluable policy insights on the Mexican criminal justice system. Specifically, he noted, the survey results were useful in identifying areas of need for further training of judicial sector personnel in the state of Baja California.

The delegates also made several suggestions for future iterations of the survey, including the possibility of partnering with their home institutions to replicate the survey with other criminal justice sector operators in 2020. Overall, the visit provided an important opportunity to share the results of the study and allow a fruitful exchange of ideas among experts working to improve Mexico’s criminal justice system.

Judges of Michoacán Affirm Their Commitment to Public Security

Marco Antonio Flores addressing the accusations made by Governor Silvano Aureoles. Source: Mi Morelia

Marco Antonio Flores addressing the accusations made by Governor Silvano Aureoles. Source: Mi Morelia

06/27/17 (written by Lucy Clement La Rosa)- On Monday, June 12th, Marco Antonio Flores Negrete, head of the Supreme Court of Justice in the state of Michoacán, delivered a public statement before Michoacán’s Supreme Court of Justice and various judicial officials promoting the objectives of Michoacán judicial authorities. The statement directly addressed accusatory comments of judicial negligence made by Michoacán governor, Silvano Aureoles Conejo, before the Ministry of Public Security’s (Secretarios de Seguridad Publica, SSP) National Conference on Wednesday, June 7th in Morelia, Michoacán.

At the conference, Aureoles asked judicial authorities to recognize their role in public security, strongly implying a lack of juridical vigor in the state of Michoacán. The Michoacán governor emphasized the ardent efforts of the state’s executive officials on behalf of public security. However, he argued that these efforts were in vain without the joint support of the judicial administration. Aureoles argued that executive and judicial officials were not acting with “the same velocity” against violence and organized crime in Michoacán. He pointed to judicial authorities citing insufficient evidence resulting in the release of an alleged Michoacán organized crime leader on June 7th. “This significantly discourages and disheartens the efforts made [by the SSP],” declared Aureoles (El Sol de Morelia).

In response, Supreme Court Justice Marco Flores publicly defended the judiciary and insisted that the actions of Michoacán judges and magistrates were in accordance with both federal and state legislation. He stated that Aureole’s accusations were “unfounded and unsupported” (Mi Morelia). Flores emphasized the role of the judiciary within the parameters of Mexico’s democracy, highlighting the importance of justice unhampered by political agendas. “At all times, we have respected the division of powers in the State, which is the basis of democracy that protects us from unilateral and authoritarian intentions (Mi Morelia).”

The Michoacán judiciary is fully in support of public security efforts against violence and crime, asserted Flores. However, he reminded his audience that all magistrates and judges must act within the parameters of Mexico’s constitutional rule of law. Indirectly touching upon the release of the alleged criminal mentioned by Aureoles, Flores added, “Hence, if you fail to prove, with legal, appropriate and sufficient evidence, the alleged criminal act attributed to a person…the judge is obligated to release him, because the Constitution expects and demands it.”

Aureoles’ divisive accusations elicited other responses as well. Javier Gil Oseguera, president of the Association of Judges (Asociación de Jueces de Primera Instancia), echoed Flores’ public sentiments. “Justice is given in strict adherence to the law, respecting the principles of equality (Quadratín).” Furthermore, Judge Ramón Sánchez Magaña, the judge with jurisdiction over the disputed release of the supposed criminal on June 7th, continued to endorse the decision to release the individual due to a lack of evidence.

Violence and Crime in Michoacán

The heightened tensions between executive and judicial officials on the topic of public security are set among increasing levels of violence and crime in Michoacán. As documented by the latest Justice in Mexico Drug Violence in Mexico (2017) report, Michoacán was the Mexican state with the third highest number of intentional homicides in 2016 with 1,287 homicides. This number was a significant increase from 2015 with 922 categorized as organized crime group (OCG) homicides.

Additionally, the Drug Violence in Mexico report highlights a pattern of violence in Mexico against two categories of special victims: public officials and journalists.  According to the report, Michoacán ranked as one of the deadliest states in Mexico for both public officials and journalists in 2016. This trend continued into 2017 with the abduction of Salvador Adame Pardo, a journalist from southern Michoacán. Adame has not been heard of since his abduction. According to the Committee to Protect Journalists (CPJ), Adame had reached out to them with concerns for his safety.

Sources

Drug Violence in Mexico: Data and Analysis Through 2016.” Justice in Mexico. March 30, 2017.

Mexican journalist abducted in Michoacán state.” Committee to Protect Journalists. May 22, 2017.

Jueces deben dar la cara para que seguridad no sea “sólo por hoy.” El Sol de Morelia. June 7, 2017.

Exige respeto Supremo Tribunal de Justicia; ‘jueces dan la cara en audiencias públicas‘”: Flores.” El Sol de Morelia. June 12, 2017.

Poder judicial pide al ejecutivo se respete división de poderes y trabajo de los jueces.” Mi Morelia. June 12, 2017.

Se excedió, dicen jueces por declaración de Ejecutivo del Poder Judicial.” Quadratín. June 12, 2017.

Justicebarometer 2016: Perspectives on Mexico’s Criminal Justice System

04/13/17 – Justice in Mexico, a research and public policy program based at the University of San Diego, released the English version of the latest publication in the Justiciabarómetro series, Justiciabarómetro 2016- Perspectives on Mexico’s Criminal Justice System: What do its operators think?, thanks to the generous funding from the John D. and Catherine T. MacArthur Foundation. The 2016 Justiciabarómetro provides a comparative analysis of the justice system operators’ demographics and perspectives, as well as comparisons to similar data collected in 2010. Survey participants included 288 judges, 279 prosecutors, and 127 public defenders in 11 Mexican states, with a response rate of 56%, a 2.4% margin of error, and a 95% confidence interval.

Justicebarometer 2016

The 2016 Justiciabarómetro builds on a series of surveys that Justice in Mexico has conducted since 2009. Through collaboration with bi-national teams of judicial system experts in Mexico, these Justiciabarómetro studies are intended to generate useful indicators of judicial system capacity and performance in order to contribute to both academic research and improved public policy efforts.

Some the most relevant findings include the following:

  • The majority of the operators of all judicial system operators are male (56%), under the age of 50 (79%), and have a post-graduate degree (57%).
  • 63% of judges surveyed earn more than $30,000 pesos each month, yet 72% of prosecutors and 82% of public defenders earn less than that amount.
  • Nearly all of the operators (89%) believe the justice system needed to be reformed and that the New Criminal Justice System (Nuevo Sistema de Justicia Penal, NSJP) has had positive effects since it began in 2008. An additional 90% think the NSJP creates greater trust in authorities, and 93% more argue it will accelerate judicial processes.
  • NSJP features are overwhelmingly well received, with roughly 95% of all operators preferring oral proceedings over previously implemented written methods, a significant increase from 2010 JABO results. Additionally, 98% prefer the use of alternative dispute resolution (ADR).
  • The majority of respondents are in favor of the presumption of innocence (84% of judges, 76% of prosecutors, and 91% of public defenders) and believe the NSJP will help reduce corruption (80% of all operators).
  • • 96% of all judicial system operators view judges as the most effective in their work when compared with prosecutors and public defenders, and an additional 96% view judges as the trust-worthiest.
  • Despite overwhelming agreement when operators were asked if they were prepared for the NSJP’s implementation and operation (86% of judges, 93% of prosecutors, and 90% of public defenders), between 13% and 29% of operators reported having never been trained in oral litigation or alternative methods to resolve cases.
  • A concerning 48% of prosecutors, 29% of public defenders, and 13% of judges believe authorities can operate above the law to investigate and punish individuals for crimes committed.

Overall, the 2016 Justiciabarómetro provides unique perspective on the administration of Justice in Mexico from the operators of the system. As noted by Justice in Mexico Program Coordinator Octavio Rodriguez, a Mexican attorney and co-author of the study, “The survey provides a rare and penetrating look inside the Mexican criminal justice system, which traditionally has been like a ‘black box’ to outside observers.”

To read the full report, please click here:  Download