|CWAG Attorneys General Meet with Mexican Attorney General Jesus Murrillo Karam and U.S. Ambassador Anthony Wayne in Mexico City
|Generals King, Suthers, Masto, Murillo Karam, Wasden and Swallow|
A delegation of CWAG Attorneys General were invited to meet with Mexico's head of the Federal Attorney General's Office (PGR), Attorney General Jesus Murillo Karam, in Mexico City, on March 19th. Attorneys General Catherine Cortez Masto of Nevada, Gary King of New Mexico, Lawrence Wasden of Idaho, John Swallow of Utah, and John Suthers of Colorado reiterated the CWAG Alliance Partnership's commitment to working with Mexico's state Attorneys General through the PGR's National Conference of Attorneys General (CNPJ). Mexico's federal Attorney General Jesus Murillo Karam expressed the PGR's continued support of conference-to-conference collaborations.
Also during their visit to Mexico City, the Attorneys General were received by the new director of the Council for the Coordination of the Implementation of the New System of Criminal Justice (SETEC), Dr. Maria de los Angeles Fromow. The Generals emphasized their commitment to supporting Rule of Law and criminal justice reform efforts in Mexico, and specifically offered their assistance to support SETEC with content development for an upcoming online training program designed to impart the fundamental tenets of an oral, adversarial criminal justice system.
U.S. Ambassador to Mexico Anthony Wayne received the visiting Attorneys General at the Embassy in Mexico City, and thanked them for their efforts to advance rule of law in Mexico. The Generals expressed their gratitude to be able to collaborate with the Embassy, the US Department of State's International Narcotics and Law Enforcement Affairs Bureau, and the US Department of Justice's Office of Overseas Prosecutorial Development and Training, on their projects in Mexico.
|Generals Wasden, Suthers, Ambassador Wayne, Generals Masto, King and Swallow|
|Idaho and San Luis Potosí Chief Legal Officers Meet to Exchange Ideas, Perspectives
Idaho Attorney General Lawrence Wasden hosted the Attorney General of the state of San Luis Potosi Miguel Angel Garcia Covarrubias and his Chief Deputy, Irma Rodriguez Aranda, in Boise, Idaho, in March. General García Covarrubias was interested in the inner workings of an oral trial system, ahead of San Luis Potosi's implementation of oral trials next year. During their trip, the delegation also met with District Judge Melissa Moody at the Ada County Courthouse, and US Magistrate Judge Candy Dale and Alternative Dispute Resolution Coordinator Susie Boring-Headlee at the Federal Courthouse. As part of the visit, the San Luis Potosi Attorney General also met with a representative of the Idaho Prosecuting Attorneys Association to talk about its operations in the state, and visited the Idaho State Police headquarters/POST Training complex, as well as touring the Ada County Jail and Dispatch Center. General Garcia Covarrubias thanked the CWAG Alliance Partnership for arranging the visit, and expressed confidence that the information learned will support his efforts during the implementation of criminal justice system reforms in his own state.
The Right Against Self-Incrimination: The two articles that follow examine, from US and Mexican perspectives, the practice of allowing the defendant to testify at trial, without being subject to cross-examination by the prosecution.
The Right Against Self-Incrimination:
How much protection is too much?
by Frank Collins, CWAG Alliance Partnership Legal Advisor, U.S. Trial Lawyer
Can someone have too many rights? Can the depth and scope of a right possessed ever be too great? There is a fundamental balance in any justice system: On one hand, is the power of the state to prosecute the accused; on the other, is the right of the accused to be treated fairly.
A defendant's right against self-incrimination is a hallmark of the U.S. justice system. Shielded by this right, the accused cannot be forced to take the stand at trial. No questions can even be imposed, much less forcing him to answer.
There is, however, is a limit. It is well-established that if the defendant chooses to take the stand, he is deemed to have waived his right against self-incrimination and must endure cross-examination from the prosecution, at least regarding the subject matter covered on direct (in some U.S. states, the defendant effectively waives this right against all relevant matters).
In Mexico's new criminal justice system, this right is also represented at trial. But there is a fundamental difference: In Mexico, the defendant may choose to take the stand at trial, but need not subject himself to questioning by the prosecutor. Thus the defendant may speak his mind, but without the scrutiny of cross-examination.
The scope of a right should rationally serve some good or avoid some evil. Every right should stand up to this test. So what good is served or evil avoided by not permitting cross-examination of a defendant who chooses to testify at trial?
Perhaps it is because the government is powerful and the individual defendant is weak, thus the defendant deserves some advantage. But why this advantage? It seems . . . arbitrary. Maybe it's because an accused is not obligated to present any evidence in his defense. The problem is, when a defendant does present evidence, the prosecution has the right to challenge it. Why should the defendant's self-serving testimony be any different?
A better explanation may lie in human dignity: that an unconvicted person should not be subjected to the indignity of having to explain himself to the government. However, many aspects of a prosecution could be considered an "indignity": pretrial incarceration, having to get a defense attorney or just having to show up at trial at all. Plus, there is no question a defendant could avoid the indignity of cross-examination by simply not taking the stand.
Looking at it from the other side, perhaps the good served is the defendant's right to tell his story in his own words. But, the right of cross-examination does not block the defendant from telling his story; it only permits the prosecution to test the logic or truth of that story.
So the heart of the issue is whether the state should be able to cross-examine the logic or truth of the defendant's story. It's hard to see this as an evil to be avoided.
The Right Against Self-Incrimination in the Oral Adversarial Criminal Justice System in Mexico
-by Dr. Albertico Guinto Sierra, Former Attorney General of the State of Guerrero, Private Practice in Criminal and Fiscal Matters in Mexico
Throughout history, the law has evolved, becoming ever more just and humane; criminal law has progressed to preserve the dignity and safeguard the freedom of people being tried. Therefore all criminal proceedings impose the obligation to respect human rights and the minimum guarantees of due process, as they are codified in the Constitution and in international treaties on human rights.
The prosecution's filing of charges should not rely on defendant's confession; the defendant's testimony should be considered as a tool for the defense and not as a means of proof, given that defendant is not required to contribute to proving the accusations made against him. It is the defendant's right to assume a passive procedural role, without it being allowed to imply his guilt. Otherwise, the State violates the presumption of innocence, which obliges the prosecution to provide evidence to support its accusation. The state has all the power to indict and seek evidence; the defendant does not always have the ability to prove his innocence.
The right to defense counsel, to be heard, to remain silent, and against self-incrimination, are rights that have been obtained over time, anchored in national law and international treaties that recognize essential human rights, which cannot be preempted with the excuse of introducing a new criminal justice system, regardless of the model being introduced.
Cross-Examination and the Right Against Self-Incrimination
In the Mexican criminal justice system, the legislature has left to the discretion of the defendant the decision to remain silent or to take part in his own cause, in addition to being entitled to a defense attorney. This right has been granted constitutional status.
The Constitution of Mexico, in Article 20, section B paragraph II, states that any person charged is entitled to: "I. Be presumed innocent until declared guilty by judgment of the trial judge; II. Testify or remain silent. From the very moment of detention, to know the reasons for it and his right to remain silent, which may not be used against him [...]. "
Defendants' Rights in the Mexican System
Three states have included principles of adversarial criminal law and internationally established human rights in their Criminal Codes: Chihuahua, Morelos and the State of Mexico.
These state legislatures have recognized that in all criminal proceedings the defendant shall be entitled to the right of presumption of innocence, the State must consider the defendant innocent in all stages of the process, and he should be treated as such until adjudged guilty; the right to remain silent, and to be advised that anything said may be used against him, and if he chooses to give a statement, it may be accepted only when given in the presence of a counsel and provided in a free, voluntary, informed manner; and that under no circumstances is the defendant to swear an oath, or be subjected to any form of coercion or threat, and no measures shall be used to compel, induce or require him to testify against his will, nor will he be subject to additional charges or counterclaims in order to obtain a confession.
Mexican law recognizes the defendant's right to freely express himself according to his own truth and prohibits any practice aimed at intimidating or pressuring him, or using any method aimed at undermining his dignity. The defendant always has the right to voluntarily decide to testify, and that decision must be freely, conscientiously and voluntarily made, well-informed and with the advice of counsel; or to remain silent and invoke the right against self-incrimination, that is, not be placed in a position of self-incrimination through cross-examination.
The Defendant Does Not Become a Witness, Even When Testifying
Forcing a defendant to answer a cross-examination against his free will would affect the essence of his fundamental rights. And if defendant decides to testify at trial, he must always be treated under the rules applicable to a defendant, always respecting the rights granted to him by the law, and not as a witness. That is to say, his legal status never changes.
If the defendant freely decides to testify, it will be without the imposition of the oath which is mandatory for witnesses. In the case of the defendant, swearing an oath implies a constraint on the will of the person, and would result in an unlawful confession. When the defendant, with the advice of counsel, decides to confess, it is up to the judge to assess it as evidence, but only given the complete freedom and spontaneity of the confessing defendant. Otherwise it would be the considered a forced provocation to obtain a confession, a circumstance that results in a real attack on human dignity, freedom and autonomy.
 Code of Criminal Procedure of the State of Chihuahua, articles: 5, 124, 133, 135 and 298.
Code of Criminal Procedure of the State of Mexico, articles: 1 and 153.
Code of Criminal Procedure of the State of Morelos, articles: 5, 128 and 137.
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2013 Training Schedule
Oral Advocacy Skills for Prosecutors
- April 9-11: Mixed Model Distance Learning Broadcast from Denver, Colorado, to Durango and Monterrey, Mexico
- April 22-26: Live Training in Salt Lake City, Utah, with Mixed Model Distance Learning in Sonora, Mexico
- May 14-16: Mixed Model Distance Learning Broadcast to San Luis Potosí, Mexico
- June 10-14: Live Training in Mexico City, Mexico, with Mixed Model Distance Learning in Chihuahua, Mexico
- July 29- August 2: Live Training in Mexico City, Mexico, with Mixed Model Distance Learning in Monterrey, Mexico
- August 12-16: Live Training in Phoenix, Arizona with Mixed Model Distance Learning in Sinaloa, Mexico
- September 10-12: Mixed Model Distance Learning Broadcast to Sonora, Mexico
*Schedule subject to change. Contact us for the latest schedule.
Congratulations to Ambassador Eduardo Medina Mora
CWAG Executive Director Karen White and several US state Attorneys General met with Mexico's Ambassador to the United States, Eduardo Medina Mora, in Washington, D.C., on February 27. Baja California Attorney General Rommel Moreno accompanied John Suthers of Colorado, John
Swallow of Utah, Lawrence Wasden of Idaho, Michael Geraghty of Alaska, David Louie of Hawaii, Tim Fox of Montana, Doug Gansler of Maryland, Derek Schmidt of Kansas, and Jim Hood of Mississippi. Ambassador Medina Mora reiterated his long-time friendship and
support for CWAG, since his days as Mexico's Attorney General, and the assembled Attorneys General in turn recommitted to supporting Rule of Law efforts in Mexico, including by continuing their support for Oral Trial trainings.
USDOJ-OPDAT and CWAG Collaborate on Trafficking in Persons Trainings
The CWAG Alliance Partnership's collaboration with the US Department of Justice's Office of Overseas Prosecutorial Development and Training (USDOJ-OPDAT) resulted in a comprehensive training program for the Office of the Special Prosecutor for Kidnapping, Extortion and Human Trafficking of the state of Morelos. Over the course of the two training sessions, prosecutors, investigators and forensic experts from the newly-formed specialized unit received practical advice from a variety of U.S. state and federal law enforcement professionals with experience in human trafficking investigations and prosecution. Rodrigo Dorantes Salgado, the newly-designated Morelos Attorney General spoke at the opening and closing ceremonies, thanking OPDAT and CWAG for their support.
Baja California Community Leaders Learn About Oral Trials in Phoenix, Arizona
On February 4-5, 2013, the CWAG Alliance Partnership received a delegation of community leaders from Baja California for a series of meetings with representatives of the Arizona Attorney General's Office and other Arizona officials. The meetings were designed to provide a greater understanding of the oral trial system. Four community leaders attended accompanied by the International Liaison of Baja California Attorney General's Office, María Louisa Yarza: Jorge Cervantes Arenas, President, National Chamber of Commerce (CANACO); Jonathan Díaz Castro, President, Civil Board of Public Safety, Baja California; Natalia Margarita Figueroa González, Member, Baja California Businesswomen Executive Board, Rosa Isela Ibarra Caldera, President, Businesswomen of the Trade Association of the Republic of Mexico (COPARMEX). Presentations included an Overview of the Oral Trial System by CWAG Alliance Partnership Legal Advisor Frank Collins; Drug Court by Keelan Bodow, Drug Court Commissioner for Maricopa County Superior Court; and a presentation by the U.S. Marshal's Service in Phoenix. Participants also toured the Phoenix Police Department Crime Lab and observed drug court proceedings. Briana Balph of the Arizona Attorney General's Office Victims Services, provided a copy of Arizona's victims' bill of rights as well as the satisfaction survey filled out by victims.
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This material was funded by a grant from the United States Department of State. The opinions, findings and conclusions stated herein are those of the author[s] and do not necessarily reflect those of the United States Department of State.