Criminal Trial Proceedings and Evidence in Venezuela
Item 1: General Trial Standards
General Principles
Immediacy: The trial takes place with the continuous presence of judges and parties. The accused cannot leave without court permission. If they refuse to stay, they are kept in an adjacent room, represented by counsel. The presiding judge appears only for necessary orders if the prosecution is extended.
If the accused’s presence is required for identification or other acts, they can be compelled to appear by police. If the defendant fails to appear or leaves, they are considered to have abandoned their defense, which will be handled by a replacement.
Article 332 (Immediacy): See COPP Article 16.
Article 16 (Immediacy): Judges must be present for sentencing, debate, and evidence incorporation.
Publicity: Trials are generally public. Exceptions (Article 333):
- Cases affecting modesty or privacy (e.g., rape).
- Serious disruption of security or morality.
- Threats to official, private, commercial, or industrial secrets.
- Minor inconvenience declared by the court.
Closure decisions must be substantiated and recorded. Publicity resumes when the cause for closure ceases. The court may impose secrecy on participants.
Records and Focus
Article 334 (Records): Precise, clear, and detailed records of the trial are mandatory, using voice recording, videotaping, or similar methods. Records must include place, date, time, and participant identities. A signed statement by the tribunal and parties is required. After the debate, recordings are available for review.
The Supreme Court of Justice will provide necessary recording tools for all criminal courts.
Article 335 (Focus and Continuity): Trials should conclude in a single day. If not, they continue on consecutive days. Suspensions up to ten continuous days are allowed only for:
- Resolving procedural issues or performing acts outside the courtroom.
- Unavailability of essential witnesses, experts, or interpreters.
- Illness of a judge, the accused, counsel, or prosecutor.
- Expansion of the prosecution by the Public Ministry or defense request.
Article 17 (Concentration): Trials should conclude on the same day or within the fewest consecutive days.
Trial Stage and Legal Classifications
Trial stage operations follow Article 172 of the COPP.
Article 350 (New Legal Classification): If the court identifies a new legal classification, the defendant must be warned to prepare their defense. This warning occurs after evidence presentation. Parties can request trial suspension to offer new evidence.
Article 351 (Extension of Prosecution): Prosecutor or complainant can extend the prosecution by adding new facts or circumstances, even before closing arguments. The plaintiff can join the extension. The accused will be questioned about new facts, and parties can request suspension to prepare their defense. The court sets a reasonable suspension deadline.
Article 172 (Working Days): Preparatory phase operates daily. Intermediate and trial stages exclude Saturdays, Sundays, holidays, and days the court chooses not to work.
Trial suspension cannot exceed ten business days, only for reasons in Article 333, paragraph 4.
Extension of prosecution (Article 351) and new legal definition (Article 350) are grounds for suspension.
Suspension, Adjournment, and Orality
Article 336 (Decision on Suspension): The court decides on suspension, announces the continuation date and time, and summarizes prior acts. Judges and prosecutors can participate in other trials during suspension unless the court decides otherwise.
Article 337 (Adjournment): If the trial doesn’t resume within eleven days of suspension, it’s considered interrupted and must restart.
Article 338 (Orality): The trial is conducted orally. Resolutions are given verbally and recorded in the minutes. Written submissions are not accepted. See COPP Article 14.
Article 14 (Orality): Trials are oral, and only evidence presented in the hearing is considered.
Evidence Incorporation and Handling
Article 339 (Reading): Only the following can be incorporated by reading:
- Previously recorded testimony or expert opinions.
- Documentary evidence, reports, and minutes of recognition, registration, or inspection.
- Minutes of evidence ordered during the trial outside the courtroom.
Other evidence requires explicit agreement from parties and the court.
Early proof is covered in COPP Articles 307 and 308.
Article 307 (Early Proof): For events that cannot be repeated or when there are obstacles to obtaining evidence, the prosecutor or either party can request the judge to perform the necessary actions. If the obstacle is removed by the trial date, the person must testify.
Article 308 (Proceedings): Records of early proof are given to the prosecutor, and copies are available to the victim and other parties.
Article 340 (Inability to Attend): Evidence from individuals unable to attend (e.g., senior officials) is examined at their location by a judge. Recording and party participation are allowed.
Article 341 (Direction and Discipline): The presiding judge directs the discussion, manages evidence, enforces formalities, moderates discussion, resolves incidents, and maintains order. They can limit speaking time and prevent irrelevant arguments.
Item 2: Trial Substantiation
Tribunal Formation and Additional Evidence
Article 342 (Tribunal Integration and Summons): The court is formed as per the Code. The Chief Justice sets the hearing date (10-15 working days from receiving proceedings). The judge(s) are named, and summons are issued.
Article 343 (Additional Evidence): Parties can introduce new evidence discovered after the preliminary hearing.
Mixed Tribunal
Article 161 (Integration): Mixed tribunals consist of a professional judge (presiding) and two lay judges. Alternates may be appointed for complex cases.
Article 149 (Right and Duty): Citizens have the right to participate as lay judges. Selected individuals have a duty to attend. The state must protect their safety.
Article 162 (Powers): Lay judges deliberate with the professional judge on guilt or innocence. The professional judge determines the sentence if the accused is guilty.
Article 163 (Designation): Within five days of receiving proceedings, sixteen names are chosen by lot, two as primary lay judges and the rest as alternates. The selection occurs 15-20 business days later. The draw is not suspended for party absence.
Article 155 (Selection): The Judiciary’s Executive Directorate conducts a lottery every two years to select lay judges from the electoral registry. The results are sent to judicial districts by December 1st. Selected citizens are notified and informed of impediments, prohibitions, and excuses.
Article 164 (Juror Selection and Tribunal Constitution): A hearing addresses inhibitions, challenges, and excuses, culminating in the tribunal’s formation. If deferred, the hearing is rescheduled within ten days. If two calls fail to form the tribunal, the judge constitutes it professionally. Party absence does not suspend the hearing. After formation, the trial date is set.
Juror Participation and Deliberation
Article 165 (Participation): Jurors can question the accused, witnesses, and experts with the presiding judge’s permission.
Article 166 (Deliberation and Vote): Decisions are made by consensus. If consensus fails, voting occurs.
Item 3: Evidence Handling and Assessment
Probation and Intermediate Phase
Article 326 (Indictment): The prosecutor presents the indictment to the court, including evidence to be presented at trial.
Article 327 (Preliminary Hearing): The judge summons parties for an oral hearing within 10-20 days of receiving the indictment.
Article 328 (Party Responsibilities): Up to five days before the preliminary hearing, parties can submit evidence for stipulation, promote evidence for trial, and provide new evidence.
Article 330 (Decision): The judge rules on the prosecution, opening the trial, and the admissibility of evidence.
Article 331 (Trial Opening Order): The order includes admitted evidence and stipulations.
Article 343 (Additional Evidence): New evidence can be introduced after the preliminary hearing.
Article 351 (Extension of Prosecution): The prosecution can be extended during the debate, even before closing arguments.
Article 359 (New Evidence): The court can order new evidence if new facts or circumstances arise during the hearing.
Evidence Assessment Systems
Article 22 (Evidence Assessment): Evidence is assessed using logic, scientific knowledge, and experience.
- Legal System: The code exhaustively lists admissible evidence.
- Self-Belief System: The judge’s conviction is paramount, but proof is still required.
- Sound Criticism System: Logic, observation, and experience guide assessment. The judge has freedom but is bound by reason.
Article 197 (Legality of Evidence): Evidence must be obtained legally. Illegally obtained evidence is inadmissible (poisonous tree theory).
Article 198 (Freedom of Inquiry): Any evidence is admissible unless prohibited by law, as long as it’s relevant and obtained legally. Notorious facts don’t require proof.
Article 199 (Assessment Budget): Evidence must be practiced according to the Code for assessment.
Article 200 (Stipulations): Parties can agree on facts to avoid presenting certain evidence at trial. These stipulations are recorded in the trial opening order.
Article 201 (Letters Rogatory): The Attorney General handles letters rogatory and mutual assistance requests according to Venezuelan law and international agreements.