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January 1, 2005

After The Revolution, It's Time To Arm The Lawyers

By Ronald Abramson, Adjunct Professor of Law

Pierce Law: A Magazine for Alumni and Friends of Franklin Pierce Law Center, Winter 2005 - Vol. 9, No. 1

On June 16, 2005, criminal lawyers in Santiago, Chile will walk into a mammoth new courthouse, face new judges and enter an entirely new procedural system.The date marks the highly-anticipated capital-city debut of a criminal justice reformation (“the Reform”) that is nothing short of revolutionary, the culmination of a decade-long process spanning two presidencies and reconciling innumerable competing interests.

Chile’s leading daily newspaper, El Mercurio, recently called the Reform “the realization of one of the largest institutional changes, and certainly one of the most important, in the history of the Chilean republic.” The Ministry of Justice’s website calls it the “most important reform of a state apparatus in the past hundred years.” Moving away from the Spanish-style inquisitorial justice system, Chile has implemented an adversarial system of justice, which resembles the U.S. system in many ways, with some important differences.

By way of background, I arrived in Chile in August 2004 to teach law students how to be criminal defense lawyers in an adversarial system. In this article, I seek to relate the magnitude of the Reform, point out some similarities and differences with the U.S. system, and last and also least, offer some personal reflections on my experience as a “foreign” visiting professor.

A Brief History of the Reform

After emerging from a controversial seventeen-year period (1973 to 1990) of military rule under the former General Augusto Pinochet, Chile has by most accounts successfully turned itself into the crown jewel of Latin America. Politically, economically and socially, Chile stability and relative prosperity make it the envy of other Latin American nations.While the nascent criminal procedure reform in Chile stirred a great deal of controversy in the early to mid-1990s, the country’s leadership saw modernization of its criminal justice system as an integral part of achieving a true democratic state.

The need to modernize the criminal courts arose from the realization that the Spanish inquisitorial model simply did not meet the demands of an open, democratic society with finely-tuned notions of justice and whose public confidence in the integrity of its justice system ranked as one of the lowest in South America, on par with countries such as Colombia.

Then-President Eduardo Frei threw down the gauntlet of criminal reform in a speech he delivered to the National run for immediate re-election). President Frei emphasized the need to profoundly reform the penal process, in such a way as to speed up resolution of conflicts and permit direct contact between the judge and the parties seeking justice. It is also necessary to separate the investigative function, which should be entrusted to a public prosecutor, from that of sentencing, which should be within the ambit of the judge. All of this would properly safeguard the procedural guarantees of a democratic state, punish criminals, protect victims and bestow security upon the citizens.

In 1997, the Office of the Public Prosecutor (Ministerio Publico) was established as an independent government body, entrusted to investigate and oversee every aspect of criminal prosecution, including, notably, the discovery and production of “those facts which support the innocence of the accused.” The creation of a national Public Defender Office (DefensorÌa Penal) followed. Unlike the conventional U.S. public defenseparadigm, the Chilean office has a small percentage of staff attorneys handling a minority of the indigent criminal caseload, while administering a system of contract-type counsel (called “licitados”), who will handle the majority of courtappointed criminal cases.

Appreciating the scale of the task it had undertaken, the Chilean government sagely chose to phase in the Reform. Given its relatively small size (15.8 million residents and about 290,000 square miles), Chile is divided into regions rather than states, with the Reform arriving in two to three regions per year. The magnum opus, the metropolitan region of Santiago (with nearly 40 percent of the nation’s population), is the last region to come aboard. Due to the sheer scale of the infrastructural demands, the start date for Santiago has already been pushed back from December 2004 to June 2005. All told, the Chilean government will have invested over $500 million (U.S.), making the Reform the single-most expensive governmental endeavor in Chile’s history.

The hallmarks of the new system are speed, transparency, continuity and fairness to all parties, expressed through a rights-based adversarial system.

The Inquisitorial System

In order to appreciate the extent and magnitude of Chile’s justice reform, it is necessary to have a basic understanding of the nature of the former system. Under the old system, a prosecutor initially took a report of a criminal offense. The prosecutor then conducted a secret (sealed) investigation, mostly interviewing witnesses, and eventually (often years later) made a decision that he had collected enough evidence to charge the defendant. The very same prosecutor who had overseen the investigation then became the judge in the case. Under the old system, criminal defense practice essentially consisted of filing highly technical motions, with no court appearances, chance for confronting witnesses or other opportunities for zealous, or any, advocacy. Invariably, the defendant was found guilty (unless a mysterious change of heart came about, often motivated by the judge-prosecutor’s financial interests) but sentencing decisions could be withheld indefinitely, often resulting in long-term detention without even a formal finding of guilt.

Interestingly, in Chile I attended a presentation where the speaker addressed the differences between the inquisitorial and adversarial systems. In a flow chart showing the procedural path of a case under the old system, I noticed a telling omission. A line flowed directly from a box marked “investigation” to “sentence”; there was no box for “trial”!

Comparisons & Contrasts with the U.S. System

The entire codification of the criminal justice reform in Chile is contained in the “Code of Criminal Procedure” (Codigo Procesal Penal, or “the Code”).

In what may strike the U.S. reader as a colossal statement of the obvious, the most crucial element of justice reform in Chile has been the separation of the functions of the judge and prosecutor. Many a criminal defense lawyer in a U.S. courtroom may have experienced the seemingly unfairly close kinship between a prosecutor and the judge in a given proceeding, but none of us has actually had to deal with those functions being fulfilled by the same person.

Confers Rights

The Reform in Chile contains a simple grant of basic procedural rights to those involved (defendants and victims) in criminal proceedings. In a single Article (93), the Code grants the accused the following rights: to be informed of the charges against him and the rights guaranteed by the Constitution and other statutes to counsel from the outset of the investigation against him; access to exculpatory information to request a hearing before a judge where the accused may speak to the subject of the investigation against him; to request that the investigation move forward and to learn its contents, except where some portion has been sealed to request dismissal with prejudice; and to appeal denial of such request to remain silent, or, if he chooses to make a statement, to do so without having to swear under oath; not to be subjected to torture or other cruel, inhuman or degrading treatment; not to be judged in his absence.

These may seem basic, almost quaint, to U.S. practitioners, but the very act of codifying rights for the accused represents a quantum systemic leap for the Chilean system.

No Juries

Under the Reform, guilt or innocence results from the majority decision of a three-judge panel. As any U.S. trial lawyer knows, arguing to a judge is quite different from pleading one’s case to a jury.While the burden of proof in the new system is also “proof beyond a reasonable doubt”, the conviction rate after trial through the end of 2003 was an astonishing 97 percent. Part of that is attributable to a strong incentive towards pre-trial settlement, but the concept of proof beyond a reasonable doubt may require further refinement as the Reform continues to evolve.

Guaranty Judge/Pre-Trial Order

The Chilean Reform creates two kinds of judges: “guaranty” and “trial” (known as “colegiado” or collegial judge). The guaranty judge is akin to a magistrate, hearing preliminary matters and creating a document known as an “auto de apertura” (loosely translated as a pre-trial order). That pre-trial order sets out the specific issues which are stipulated and those which are in play at the oral trial, presuming to make the trial itself much more efficient.

“Querellante”

Due to a number of factors, the new Chilean criminal system provides for an unusual role. In addition to the judges, prosecutor and criminal defense lawyer, alleged victims are permitted to file their own private claim (a “querella”) and have their own attorney (at their own expense) represent their interests (usually monetary) during the trial.

The manifestation of this additional player is anathema to U.S. sensibilities. Yankee practitioners need only imagine the prosecutor getting up to do an opening related to the facts of the case, the proof against the accused, the impact of society and the need to do justice for the community as a whole. Thanking the judges, the prosecutor sits down, to be followed by a private lawyer arguing on behalf of her client, the alleged victim, offering a different vision of the case, focused on the harm to her client, and the fact that only a certain amount of monetary compensation will make things right. The defense lawyer is then in a position of wearing two hats: criminal defender and civil litigator. It is not yet clear whether the dynamic creates a sort of “vouching” effect for the State, or whether the potentially competing visions of the case could create reasonable doubt. Given the 97 percent conviction rate, it seems that the private “querellante” bar is not hampering the prosecution’s efforts too badly.

Pierce Law Adjunct Professor Ronald Abramson was awarded a Fulbright Scholarship to teach during the August–December 2004 academic term as a visiting professor at the Universidad Diego Portales School of Law in Santiago, Chile.

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