Will Oral Trials Make a Difference?

Will oral trials make a difference?  This is a big question in Mexico right now.  There has been a lot of national attention paid to the Constitutional legal reforms happening in Mexico – the revision of the Constitution to require oral trials, and to give more due process rights to defendants accused of crimes.  The presumption of innocence (“innocent until proven guilty”) is new here – before the reforms, it had always been a system where you were guilty until proven innocent.  Confessions obtained my torture were recently forbidden to be used in court, and there are higher standards of evidence that a prosecutor must meet in order to prove someone guilty (i.e. “beyond a reasonable doubt”). 

One the one hand, these are major reforms.  New courtrooms are being built to house oral trials and hearings.  Lawyers are being trained in oral advocacy.  Judges are being trained regarding what these new legal standards like “beyond a reasonable doubt” mean.  Respected institutions from the United States, such as USAID, the American Bar Association, and universities are pouring resources into training legal professionals in Mexico about this new system.  Despite the enormity of these reforms, however, I keep wondering if any of this is really going to make a difference.  Will these changes bring more justice to Mexico?  Will they engender greater trust of the judicial system among Mexican people?  I don’t know…

In some ways, I am optimistic about the potential for the reforms.   Under the old system, people were often incarcerated in pre-trial detention for long periods of time while the government investigated the case.  Speedy trial rights did not seem to apply, and people were often left waiting for years.  Under the new system, there are strict timelines with regards to when a case must be brought to trial.  This seems to be a huge improvement.  In a trial, people will have the opportunity to see who the witnesses against them are; this is an improvement upon the former system where often defendants were not told who the witnesses against them were.  Similarly, outlawing the use of confessions obtained by torture is a good thing – it is unreliable information that can lead to the conviction of innocent people, and it is inhumane.

But…the citizenry of Mexico does not trust the judicial system.  I cannot stress this enough.  Virtually everyone I have spoken with has told me that if they were a victim of a crime, they would not report it.  There is a profound distrust of the system.  If this does not change, it is hard to imagine that changes to the form of a trial will bring about greater justice. 

Many of the criticisms of the old system will not necessarily be addressed by oral trials, particularly because there are no juries in Mexico’s new system.  One prominent critique of Mexico’s former judicial system focused on the large number of people who are in prison for stealing food to feed their families, or for stealing other items of relatively low value.  However, I can’t help but think of California, where thousands of people are serving life in prison for similar crimes because of the Three Strikes law.

The shift to oral trials will, at the very least, aid in increasing transparency – adult trials are open to the public, and people will have access to information such as witness names and testimony that were not readily available before.  This is a huge improvement.  Whether the reforms will impact the public perception of the justice system among the general population remains to be seen.  My hunch is that the success or failure of this new system will rest largely upon this.