Justice in Mexico should now be faster and fairer with the implementation of major changes to the judicial system in Mexico.
Enacted into law in 2008 but not fully implemented until June 18, 2016, the new system has introduced several major process changes that will make Mexico’s judicial system more transparent and accountable and bring the country more in line with the U.S. and other developed nations.
Two major changes will affect Mexicans and expatriates alike.
First, the new system provides for oral hearings and trials, a major departure from the written hearings and trials that have been the practice for years under Mexico’s old judicial system. Use of oral arguments should bring more public scrutiny to cases that were previously held in private. Everything was done on paper and defendants rarely had a chance to see a judge.
The judicial changes effectively replace the centuries-old system that presumed guilt until proven innocent. Under the old system, people could easily pay to put someone in jail with no public hearings and no way for defendants to contest unjust incarceration. Under the new system, defendants will go through three separate hearings, all oral and public. Now, defense lawyers and prosecutors will plead their case before a judge or a panel of judges.
During the initial arraignment hearing a judge will decide whether or not the person’s detention was legal. An evidence hearing will follow the arraignment hearing and will be heard by a different judge who will decide what evidence can be presented at the final trial and what evidence is tainted and should be excluded. Finally, a third judge at a bench trial will decide whether or not the defendant is innocent based on evidence, testimonies and the law.
Separate judges for each step in the judicial process are expected to reduce corruption in the system.
The second major change is the role of the public prosecutor, which under the old system required prosecutors to both research and investigate crimes. Now, prosecutors will only be responsible for bringing the case to court where the person is caught in the act, and police will be in charge of gathering and protecting evidence, creating a separation between those who investigate the crime and those who decide upon the guilt of the suspect.
The burden of proof previously fell on victims, who were responsible for gathering reports and getting them to the prosecutor’s office. Under the new system, police for the first time have to investigate, collect evidence and testify. Training of police to comply with the law will take money and time to bring Mexico up to the standards of other developed countries.
To get a clearer idea of how the new system will affect expats, we asked Guadalajara-based attorney Spencer McMullen to weigh in. We first asked him why Mexico made these changes.
“To be a global power in business and investment, Mexico needed to show the world that they’re not putting innocent people in jail, and also ensure that the guilty are going to be processed quickly and fairly,” he said. “Previously, a sizeable number of people who were arrested for minor offenses just sat in jail waiting to see a judge. Many were in jail on minor offenses, like stealing a six-pack of beer. Everything was kind of behind the scenes with no public hearings. This new system will change that.”
McMullen also told us that the improved judicial system now includes plea bargaining, which provides for alternative dispute resolution instead of putting someone in jail where they may have to wait for six months or longer for a trial and then have a lengthy sentence for a minor charge.
“One of the big differences with the new system is the role of the police,” he said. “The prosecutors from the Ministerio Público collected and presented all of the evidence before, but now the police will do that job. It’s going to take a while, though, before that runs smoothly because the training required to bring them up to international standards will take a long time.”
McMullen believes that this police learning curve may make it easier in the short-run for attorneys to get people off on technicalities since they are not used to or trained to do CSI-type of work.
“In the U.S. the cops have it down to a science,” he said. “They take their notes, collect evidence and know how to testify. Here, there will be a longer learning curve to make the charges stick with properly collected evidence.”
One of the big changes, McMullen said, is the effect the new system will have on the rights of victims.
“Before, a victim would file charges and then have to prove their case,” McMullen said. “Now, police will investigate, examine the evidence, take pictures, make a report and pass everything on to prosecutors who will then prosecute the perpetrator. Previously, the burden of proof was on the victim to collect reports and make multiple trips to the prosecutor’s office. The improved system will make the process fairer, faster and less of a burden on the victim.”
McMullen thinks the judicial changes are definitely a step in the right direction, but the proof of success will be in the implementation.
“Right now there are cases caught between the old and new systems,” he said, “and it will just take some time to resolve. For expats, the new system will be a major improvement. Take immigration, for example. Under the old system if you were to lose your immigration card, before you presented the replacement request to immigration, we would have to present a report to the Ministerio Público, which would mean going there and waiting while they typed everything up and then presenting the written report of the lost document. The government would have to do ratification or the client would have to appear, bring five copies of their ID and then the hearing would be typed up and ratified. Under the new system, we present two pieces of paper and it’s all done once so there is no coming back in a week to ratify it with five copies of your ID. It significantly reduces the paperwork and saves time and money.”
The implementation of judicial changes began several years ago in a number of Mexican states and by law all 31 Mexican states and Ciudad de México had to be in compliance by June 18, 2016. Both new and old systems will coexist until pre-existing cases are cleared in those states that were late in implementing the law.