Intermediate Stage and Trial in Criminal Proceedings

Posted on May 20, 2024 in Law & Jurisprudence

Intermediate Stage and Trial

Intermediate Phase

Concept

The intermediate stage is a crucial part of ordinary criminal proceedings. It spans from the filing of charges to the issuance of an order to commence trial. This phase aims to refine the criminal charges, examine the evidence supporting the accusation, and potentially lead to the exoneration of the accused.

Start and End

The intermediate phase commences with the prosecution’s indictment and concludes with the judge’s decision, known as the order to commence trial.

Subphases

The intermediate stage encompasses two subphases. The first, characterized by written submissions from involved parties, is dominated by postulatory procedures. The second, known as the purification stage, emphasizes orality and unfolds during the trial preparation hearing.

The Postulatory Substage

This substage begins with the prosecutor’s indictment, typically filed within ten days of the investigation’s closure or the expiration of any reopening or extension. Following this, Article 260 of the Criminal Procedure Code (CPP) mandates the judge to summon all parties to a trial preparation hearing, scheduled within 25 to 35 days. The defendant receives a copy of the indictment, acknowledges their presence in court, and gains access to the records accumulated during the investigation.

Up to 15 days before the trial preparation hearing, the complainant can exercise their rights outlined in Article 261 of the CPP through written submissions. Similarly, the accused can exercise their rights under Article 263 of the CPP in writing up to the eve of the hearing. These written submissions, including the prosecutor’s indictment and any submissions from the complainant or the accused, constitute the postulatory phase of the intermediate stage. These submissions are later subject to verbal clarification during the”trial preparatio” hearing.

Attitude of the Complainant and Civil Plaintiff

As mentioned, the postulatory stage of the intermediate phase begins with the prosecutor’s indictment. This is essential because if the prosecutor had chosen not to proceed or requested dismissal, and this was approved, there would be no intermediate stage or trial preparation.

The postulatory phase is dynamic, with the active parties—the prosecutor, the complainant, and the civil plaintiff—taking the initiative through written submissions. Having analyzed the prosecutor’s role, let’s examine the attitude of the complainant and the civil plaintiff.

Article 261 of the CPP states that the complainant, 15 days before the trial preparation hearing, can choose to:

  1. Adhere to the prosecutor’s indictment, potentially raising a different grade of the offense, suggesting alternative forms of the defendant’s participation, requesting a specific sentence, or expanding the case against the defendants.
  2. Point out formal errors in the indictment, requiring correction.
  3. Provide evidence to support their accusation, adhering to the terms outlined in Article 259 of the CPP.
  4. File a civil lawsuit.

Attitude of the Accused

Once the active parties have submitted their written arguments, the accused has the right to respond to these claims. This can be done in writing until the eve of the trial preparation hearing or verbally at the beginning of the hearing (Article 263, CPP). This allows for a written defense if filed before the hearing and an oral defense at the start of the hearing.

It’s crucial to understand that the accused has the RIGHT to refute the arguments made against them. This right stems from the fundamental right to remain silent. If the accused chooses to respond, they can exercise the powers granted by Article 263 of the CPP, which include:

  1. Pointing out formal errors in the indictment, requiring correction.
  2. Raising special exceptions requiring prior pronouncement.
  3. Presenting defenses and identifying evidence for examination during the trial, following the terms of Article 259 of the CPP.

If the accused chooses not to present their arguments in writing, they can do so verbally at the beginning of the trial preparation hearing.

References to the Provision of Evidence and Expert Testimony

The active parties—the prosecutor, the complainant, and the civil plaintiff—can offer evidence to support their claims. Article 259(f) of the CPP requires the prosecutor to present evidence, while Article 261(b) of the CPP outlines the same requirement for the complainant and the civil plaintiff. Article 263(c) of the CPP extends this requirement to the accused.

Therefore, the offering of evidence in criminal proceedings occurs during the intermediate phase, specifically in the postulatory substage. Among the various means of persuasion, testimonial and expert evidence deserve special attention. When presenting testimonial evidence, the applicant must provide a witness list, including names, surnames, professions, domiciles or residences, and the points their statements will address. Expert evidence can also be offered, requiring the individualization of the expert, their qualifications, and adherence to Article 315 of the CPP. This involves submitting an expert report that meets the requirements of Article 315, allowing the court to rule on its admissibility (Article 316, CPP).

Therefore, those presenting evidence through witnesses and/or experts must include this in their respective indictment (active parties) or defense statement (accused). In the case of testimonial evidence, a witness list and minutes of test points are required. For expert evidence, the expert’s identity, qualifications, and a supporting report are necessary. Most courts consider expert evidence to consist solely of the expert’s oral examination during the hearing. The report itself is not typically incorporated to uphold the principle of immediacy protected by Article 334 of the CPP. However, Article 315(2) of the CPP allows for exceptions. Expertise involving alcohol analysis, DNA, and narcotic or psychotropic substances can be incorporated into the trial through a report. However, if any party requests the expert’s presence, this cannot be reasonably replaced by a report presentation.

Trial Preparation Hearing: Objectives

Concept

The trial preparation hearing is a crucial step within the intermediate phase of a full criminal trial. Conducted by the Justice of Security under the principles of orality and immediacy, this hearing facilitates various activities. These include rectifying procedural defects, expediting the case, and conducting evidentiary procedures, all within a logical and preclusive framework.

Opportunity

Article 260 of the CPP stipulates that the trial preparation hearing should occur within 25 to 35 days after the resolution ordering its scheduling. This resolution is typically pronounced within 24 hours of the prosecutor filing the indictment.

Enabling Condition

The trial preparation hearing can only take place after the prosecutor files the indictment or, failing that, after the private complainant compels the prosecution.

Objectives

The trial preparation hearing serves several objectives. Broadly, it aims to cleanse the lawsuit of procedural errors. This can involve correcting formal defects or resolving exceptions and special pronouncements. It also addresses evidentiary matters, such as excluding illegally obtained evidence or evidence from nullified proceedings. Additionally, parties can agree on undisputed facts through evidentiary conventions. The hearing also allows for the advance request of witnesses and experts. Finally, it can streamline the process by enabling the transition from ordinary to abbreviated proceedings or by facilitating alternative solutions like suspended proceedings or compensation agreements.

Sanitizer Objective

The sanitizer objective is achieved through addressing and resolving exceptions and special pronouncements and by correcting formal errors in the indictment. Let’s delve into these sanitizing activities:

1. Exceptions and Special Prior Announcement

  1. Enunciation: Exceptions and special pronouncements address issues like the judge’s incompetence, lis pendens, res judicata, lack of authorization to proceed criminally, cases requiring constitutional or legal authorization, and the extinction of criminal responsibility (Article 264, CPP).

Correction of Formal Errors

Article 270 of the CPP allows the judge to officially initiate a debate on correcting formal defects in the prosecutor’s, complainant’s, or civil plaintiff’s case. The judge can order the correction of these defects or remedy the default without suspending the hearing, if possible.

Objective Evidence

1. Statement

The objective evidence is addressed through these mechanisms: discussion of exclusion or reduction of evidence, evidentiary conventions, and the request for witnesses or experts in advance.

2. Discussion of Exclusion or Reduction of Evidence

Article 272 of the CPP empowers parties to make requests, comments, and proposals regarding evidence offered by others, aiming to achieve the purposes outlined in Article 276(2) and (3) of the CPP.

Article 276 of the CPP establishes the exclusionary rule of evidence for the trial. This rule applies to evidence that is manifestly irrelevant or aims to demonstrate public and notorious facts. It also applies to illegally obtained evidence, which, in our binomial system, encompasses evidence obtained in violation of fundamental guarantees or evidence stemming from nullified actions or proceedings.

Alongside the exclusionary rule, the law also provides a reduction mechanism for testimonial and documentary evidence. If the number of witnesses or documents offered appears purely dilatory, the judge can order the respective party to reduce their number. This applies when the evidence aims to prove the same facts or circumstances that lack substantial relevance to the matter presented to the court (Article 26(2), CPP).

In conclusion, evidence is subject to exclusion or reduction. Illegal evidence, evidence aiming to prove public or notorious facts, and manifestly irrelevant evidence are excluded. Reduction applies to excessive testimonial or documentary evidence unless it holds substantial relevance to the facts presented to the court.

3. Evidentiary Conventions

  1. Concept: These are agreements between the prosecutor, the complainant, and the accused to establish the undisputed nature of certain facts. These facts cannot be challenged during the trial. The judge can propose such conventions to the participants (Article 275(1), CPP).

4. Advance Application of Witness and Expert Evidence

Finally, the trial preparation hearing allows for the advance request of witness and expert evidence, as per Article 280 of the CPP. This applies in cases outlined in Article 291 of the CPP, such as impairment or disability preventing the witness or expert from attending the trial. The judge schedules a hearing to receive this anticipated evidence, which is later incorporated into the trial as per Article 331(a) of the CPP. If circumstances mentioned in Article 291 of the CPP arise after the trial preparation hearing, the judge can schedule another hearing to receive the evidence early.

Avoiding Cumbersomeness

1. Statement

This objective is achieved through streamlined activities that facilitate a swift resolution to the conflict or an alternative solution. This can involve transitioning the case from ordinary to summary proceedings.

2. Alternative Solutions

The trial preparation hearing allows for the conditional suspension of proceedings and the preparation of agreements. If the investigation was closed, these alternative outcomes can only be agreed upon during the trial preparation hearing (Article 245(2), CPP).

3. Accelerated Procedure

This is a streamlined objective where the case follows a special ritual. The accused, by accepting the facts in the indictment, accepts the history collected during the investigation, expediting the trial. Article 407 of the CPP allows for requesting the case to be processed under the accelerated procedure during the trial preparation hearing.

4. Conciliatory Objective

Another objective of the trial preparation hearing is conciliation. Article 273 of the CPP allows the judge to call for conciliation between the complainant and the accused regarding civil actions. The judge suggests bases for this conciliation.

Sequential Order of Activities

The law doesn’t explicitly define the order of activities within the trial preparation hearing. However, the principles of procedural default offer guidance. This institution applies not only to fulfilling procedural requirements but also to avoiding actions incompatible with those already taken (e.g., challenging the court’s jurisdiction after answering the lawsuit).

Considering this, a possible sequential order of activities is:

  1. Exceptions and Special Prior Announcement: This should precede other activities because it includes exceptions like the court’s incompetence. Addressing this later would lead to contradictory decisions.
  2. Discussion of Alternative Outcomes: This is crucial because accepting an alternative outcome might negate the need to correct formal defects.
  3. Correction of Formal Defects: Whether the case proceeds through ordinary or summary proceedings, formal errors must be addressed.
  4. Abbreviated Procedure Approach: If a summary procedure is adopted, discussing the exclusion of evidence becomes irrelevant because the defendant accepts the record of the summary procedure.
  5. Debate on Exclusion of Evidence.
  6. Evidentiary Conventions.
  7. Conciliation.

The Order to Commence Trial

Concept

The order to commence trial is the judge’s resolution concluding the trial preparation hearing. It serves as the foundation for the trial court to receive oral evidence, aligning with the attribution and legal qualification made by the prosecution.

Legal Status

This is an interlocutory sentence, laying the groundwork for the subsequent final decision, which is the only instance sentence pronounced by the trial court in criminal proceedings.

References

The order to commence trial includes:

  1. The competent court to hear the trial.
  2. The charges or accusations, including any corrections made.
  3. The civil lawsuit.
  4. The facts deemed credible, as per Article 275 of the CPP.
  5. The evidence to be presented during the trial.
  6. Identification of those summoned to the trial hearing, including witnesses requiring pre-payment for travel and accommodation.

Challenge

Only the prosecutor can challenge the order to commence trial, and only on one ground. Article 277(2) of the CPP allows the prosecutor to appeal the order solely based on the exclusion of evidence deemed illegal by the security court. This appeal functions as an extraordinary appeal, as the law predefines the grounds for challenge.

Status of Other Aggrieved Participants

Setting aside Constitutional Court ruling 1535-09 and focusing solely on Article 277(2) of the CPP, the accused, if aggrieved by the exclusion of exculpatory evidence, can seek annulment. This relies on Article 373(a) of the CPP, which addresses violations of rights outlined in the Constitution or international treaties. This applies if the accused is deprived of evidence crucial for their defense.

However, the Constitutional Court, in ruling 1535-09, stated that the phrase”interposed when the M” in Article 277 of the CPP contradicts the Constitution if interpreted as preventing the plaintiff from challenging the order excluding illegal evidence against them. The court reasoned that the plaintiff holds the same legal standing as the prosecutor and should be able to appeal. Similarly, the court recognized that the accused, facing the unlawful exclusion of evidence, is in a position equivalent to the prosecutor and should also have the right to appeal the order excluding any form of evidence.

However, it can be argued that the plaintiff (prosecutor or private plaintiff) is not in the same position as the accused regarding illegal evidence. The procedural system must tolerate the inclusion of illicitly obtained evidence for the prosecution, as excluding it could lead to convicting an innocent person. Therefore, the criminal justice system doesn’t grant the plaintiff the same appeal rights as the accused, and illicitly obtained evidence for the prosecution is not subject to exclusion.

The Trial

Formative Principles

The trial is guided by these formative principles:

  1. Orality
  2. Immediacy
  3. Continuity
  4. Concentration
  5. Conflicting principles and equal parts

These principles have been explained in detail elsewhere, and we refer to those explanations for brevity.

Pre-trial Proceedings

Article 281 of the CPP states that the judge must send the order to commence trial to the competent court within 40 hours of it becoming final. Upon receiving the order, the court distributes the case among its chambers based on general criteria approved by the judges’ committee, following a proposal from the presiding judge. The presiding judge of the designated chamber then sets the trial date, which must be within 15 to 60 days of the order’s notification. This resolution also names the other court members and any alternate judge required under Article 284 of the CPP.

Sequence of Actions in the Trial Court

The trial unfolds through these actions:

  1. Constitution of the trial court.
  2. Opening statements from both the accusers (prosecutor and plaintiff) and the defense counsel.
  3. Defendant’s right to speak.
  4. Evidentiary stage, with the prosecution presenting evidence first, followed by the accused and the defense, each determining the order of their evidence.
  5. Closing arguments and rebuttals.
  6. Defendant’s right to speak.
  7. Incidents related to new evidence and evidence on trial.
  8. Sentencing phase, including deliberation, verdict, sentencing hearing, and communication of the sentence.

Development

  1. Opening of the Court and the Trial: Article 325 of the CPP states that the court convenes on the set date and time with the presence of the prosecutor, the accused, their counsel, and other participants. The trial cannot proceed without all designated parties present. The court’s first task is to verify these conditions. Acquitting the accused due to the prosecutor’s absence would be inappropriate. In such cases, Article 287 of the CPP applies, and a new trial date is set. If the conditions are met, the court initiates the trial.
  2. Opening Arguments: Once the trial begins, the court reads the charges and informs the defendant of their right to understand the proceedings and request the removal of experts and witnesses present in the courtroom (Article 325(2), CPP). The prosecutor then presents their case, followed by the complainant and the civil plaintiff, marking the opening statements of the active parties (Article 325(4), CPP). After the active parties, the defense counsel presents their arguments, constituting the opening statements for the accused.
  3. Defendant’s Right to Speak: After the opening arguments, the accused is given the right to speak (Article 326(1), CPP). If they choose to speak, they can be questioned by the prosecutor, the complainant, and the defendant, in that order. Judges can also ask clarifying questions (Article 326(3), CPP).
  4. Evidentiary Phase: After the defendant’s opportunity to speak, the evidentiary phase begins. Evidence is presented first by the active parties and then by the passive parties. The order of evidence presentation is determined by the respective party (Article 328, CPP). The method of evidence presentation depends on the type of evidence:
    1. Witness Testimony: Testimony is presented through the statements of witnesses, who are individualized by the presiding judge (Article 307, CPP). They provide their statements following Articles 298 and subsequent articles of the CPP.
    2. Expert Evidence: Expert evidence is presented through the expert’s statement regarding the content and conclusions of their report (Article 319, CPP).
    While the general rule is for witness and expert testimony to be presented personally and live in the courtroom, the law allows for video conferencing in exceptional cases. This requires a prior hearing specifically for this purpose (Article 329, CPP).
    1. Documents: Documentary evidence is presented through reading (Article 333, CPP).
    2. Objects and Other Evidence: These are displayed to other participants. Recordings, computer evidence, and other electronic evidence are played using appropriate means (Article 333, CPP).
    3. Other Evidence Not Specifically Covered: Article 295 of the CPP establishes the principle of freedom of evidence, allowing parties to prove relevant facts and circumstances using any method produced and incorporated in accordance with the law. While some types of evidence have specific regulations for their presentation, others, falling under the principle of Article 295, do not. In such cases, Article 323 of the CPP applies, suggesting that the presentation should align with the most similar regulated method.
    4. Personal Inspection by the Court: Our CPP governs an adversarial accusatory system, meaning the court doesn’t take an active role in evidence gathering during the trial. This adheres to the principle of party contribution. However, Article 337 of the CPP allows the court to move to a different location, such as the scene of the incident, for a better understanding of certain conditions. This is at the court’s discretion and is only used if the evidence presented during the trial raises doubts that require clarification at the scene.
  5. Closing Arguments: After the evidentiary phase, closing arguments are presented, as outlined in Article 338 of the CPP.
  6. Defendant’s Right to Speak: After the closing arguments, the court grants the accused another opportunity to speak, after which the debate is declared closed (Article 338, CPP).
  7. New Evidence and Evidence on Trial: The CPP addresses two types of evidence-related incidents: new evidence and evidence on trial. Article 336(1) of the CPP allows the court to receive evidence not previously offered if the party justifies their lack of prior knowledge. Article 336(2) of the CPP allows for presenting evidence if a dispute arises regarding the accuracy, authenticity, or integrity of evidence already presented, aiming to clarify the circumstances, provided this need was unforeseen.
  8. Sentencing Phase: The sentencing phase comprises several stages, starting with deliberation (Article 339, CPP) and ending with the communication of the sentence (Article 346, CPP). Deliberation occurs immediately after the debate concludes (Article 339, CPP). It culminates in a verdict, which can be acquittal or conviction, and must be delivered during the same trial hearing. Exceptionally, if the trial extends beyond two days and the case’s complexity prevents an immediate decision, the court can extend the deliberation up to 24 hours (Article 343(3), CPP). Failing to deliver the verdict within the legal timeframe results in a mistrial, requiring a retrial shortly (Article 343(3), CPP). After the verdict, if the accused is found guilty, a sentencing hearing is held during the same hearing. This hearing addresses mitigating and aggravating circumstances and other factors relevant to sentencing. The court can receive background information from the participants to support their requests. This is called the penalty determination hearing (Article 343, CPP). The trial court’s sentence is presented in writing, as per Article 344 of the CPP, within five days of providing the speakers with the written text. This five-day period is extended by one day for every two days exceeding the initial five-day trial duration. Failing to deliver the sentence within this timeframe results in a mistrial unless the verdict was acquittal. This is without prejudice to disciplinary actions against court members who fail to meet the deadlines (Article 344, CPP). The sentencing communication hearing is where the content of the sentence is revealed (Article 346, CPP).

General Rules on Evidence, Conviction, and Procedural Consistency

General Rules of Evidence

Articles 295, 296, and 297 of the CPP outline these principles regarding evidence:

  1. Freedom of evidence
  2. Opportunity to receive evidence
  3. Evaluation of evidence

The principle of free evidence states that all facts and circumstances relevant to the case can be proven using any means produced and incorporated in accordance with the law. Evidence is offered during the postulatory stage of the intermediate phase and incorporated into the trial as explained earlier, depending on the type of evidence.

Article 296 of the CPP establishes a rule for presenting evidence during the trial hearing, except for legally defined exceptions. These exceptions include anticipated evidence from witnesses and experts, which can be received during the investigation phase or after the order to commence trial, as permitted by Article 280(2) of the CPP.

Finally, Article 297 of the CPP establishes the rule for evaluating oral evidence during the trial. It states:”The courts will appreciate the freedom to test, but may not contradict the principles of logic, the maxims of experience and scientific knowledge entrenched”

This means the court doesn’t follow a legal assessment of evidence, where the law assigns a predetermined probative value to each type of evidence. The court can freely give more weight to one type of evidence over another. However, this freedom is not absolute. It is limited by the principles of logic, maxims of experience, and established scientific knowledge. This system is known as”sound criticism” contrasting with the”legal assessment of evidenc” system, where the law dictates the value of each type of evidence. It also contrasts with the”free evaluation of evidenc” system, which lacks sentencing limits. Sound criticism imposes limits based on the principles of logic and experience.

This freedom granted to the court is balanced by a requirement for justification, especially regarding the assessment of evidence. This leads to the following requirements:

  1. The court must consider all presented evidence, including rejected evidence, stating the reasons for rejection.
  2. The standard of proof required for each fact must be specified.
  3. The reasoning used to reach the conclusions in the sentence must be reproducible (Article 297, CPP).

Offer of Proof

: Although it was said elsewhere, we reiterate that the evidence in the criminal process provides written postulatory stage of the intermediate phase, or verbally at the beginning of it, in the case of the accused. It must be noted that in the case of expert testimony and the offer is subject to the first case (testimony) will present a list of witnesses and a minute of test points in the second case (expert testimony) be individualized to the expert and describing its qualities and also accompanied titles expert report for the court to guarantee to evaluate the relevance, reliability and fitness expert.

Standard of proof: The standard of proof necessary to arrive at a sentence contemplated in Article 340 CPP as follows: “nobody can be convicted of a crime but also when the court deems it acquires, beyond reasonable doubt the conviction that it really if he has committed the offense and the defendant would have corresponded to a guilty participation and punishable by law. “

Consequently, there is no statutory standard of conviction sentencing the “absolute certainty”, nor a state of certainty if not free of doubts that complies with the court does not stay with reasonable doubt. Reasonable doubt is one that a prudent person would hesitate a business or important issue and must be based on evidence presented itself at trial or in the absence of evidence to prove the crime.

Limits conviction or procedural consistency: then indicate the limits on the issuance of a conviction.

1. You can not convict a person if they do not meet the standard of proof established by law (Art 340 inc 1, CPP).

2. You can not convict a person of evidence that have not been produced at trial (Article 340 CPP inc 2 º).

3. You can not convict a person for the sole merit of his statement (Article 340 inc 3 º CPP).

4. You can not convict a person of facts or circumstances not covered by the indictment (Article 341 CPP).