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  • Writer's pictureKirk Hartley

Differences In Legal Systems – Mexico and the US On Criminal Law

How different is the Mexican legal system from the US system? The article pasted below provides a glimpse in to the current signficant differences between the US crininal law system and the Mexican criminal law system. The article is from the August 14, 2009 issue of the Chicago Daily Law Bulletin.

School helps Mexico change trial process

By Jerry Crimmins Law Bulletin staff writer

Chicago-Kent College of Law is playing a role in the sweeping reform of the ancient criminal justice system of Mexico. For hundreds of years criminal trials in Mexico — if you could call them that — have been hidden, according to David A. Erickson, associate director of Chicago-Kent’s Trial Advocacy Program. They were seen by neither the victims, the defendants, the witnesses nor the public. “There was nothing to watch,” he said. “There was no trial in our sense. The entire system for the last 500 years has been written…. “The prosecutor writes up all his evidence,” Erickson said. “The defense attorney writes up all his evidence…. The lawyers stood in front of a judge and handed the stuff to his secretary, and that was it. “A year or two later, the judge writes his decision,” and sometimes the delay in the verdict is longer than that, Erickson continued. “They never put on a witness, and a defendant in this system never gets to see his judge.” The Mexican criminal justice system is “inquisitorial,” Erickson said, because the judge asks all of the questions. But now, pushed by President Felipe Calderon, Mexico is moving toward nationwide adoption of an accusatorial, oral trial system like the one in the United States. This eventually will mean public trials, public questioning of witnesses, defendants sitting at their own trial who get to see their accusers and the judge, and the presence of the public and news media, Erickson said. “This is a total, 180-degree change for them. It takes a lot of courage for them to do this,” he said. The reforms are expected to take eight years. They are intended, according to Chicago-Kent, to fight corruption and instill public confidence in the judicial system. Chicago-Kent’s job, with a $1.2 million grant from the U.S. government, is to train judges, lawyers, law professors and students on how to conduct open trials. “We’ve been down there twice, the first time for a planning session in January,” Erickson said. “Our partner law school [Technologico de Monterrey in Mexico City] built a million-dollar courtroom in its law school for us to train.” In June, Erickson, along with Chicago-Kent Professsor William Douglas Godfrey, Adjunct Professor Ljubica D. Popovic, and student Mariana Munoz, went to Mexico again to teach lawyers and judges how to try a case in the open. Godfrey and Popovic are former prosecutors. Erickson has wide experience in criminal law. He started out as a prosecutor and became first assistant state’s attorney of Cook County. He also has served as a Criminal Courts judge, a Juvenile Court judge and justice of the Illinois Appellate Court. Munoz’ father is from Mexico and her mother from the U.S., and she is fluent in Spanish. “I had Mexican lawyers on their feet doing direct examinations, cross-examinations, opening arguments, closing statements,” Erickson said. “They did it just like we did here in the United States.” Until recently, he said, Mexicans’ only knowledge of open trials came from movies and TV. “They think everything is like ‘Law and Order.’ “First we taught their entire faculty of 26, all the professors,” Erickson continued, “then about 20 lawyers. I lectured 16 judges.” Ten students from the law school also came and watched. Although they hadn’t been invited. Erickson insisted that they be allowed to stay. “The younger the lawyer, the more they’re in favor of this,” he said. “Judges are more reticent.” Partly they are afraid that, if they are known, they may be killed due to the widespread violence perpetrated by drug gangs, he said. Erickson said one judge told him, “I can go to a coffee shop now and nobody knows I’m a judge. In this new system everybody knows.” Prosecutors and police are often opposed to open trials in Mexico, Erickson continued. “The current president ramrodded this through.” As part of widespread reforms approved by the Mexican government a year ago, Mexico copied and adopted the Fourth, Fifth, and Sixth amendments to the U.S. Constitution. In the U.S., the Fourth Amendment guards against unreasonable searches and seizures; the Fifth prohibits double jeopardy and forced self-incrimination, and provides for due process and property rights; the Sixth provides for speedy public trials, the right to confront accusers, the right to bring one’s own witnesses and the right to a lawyer. The Mexican criminal justice amendments are expanded, Erickson said. “They mandate in the constitution a federal defender program, and also a victims’ bill of rights…. It allows the victim of a crime to retain a private attorney and to sit at the counsel table and participate in the trial.” Mexico has started to use open trials in a few locations. The training program conducted by Chicago-Kent and Technologico de Monterrey will educate lawyers in Nuevo Leon, Baja California and Morelos. The program is also intended to train Mexican law professors who will then teach others. A few Mexican lawyers, including two this coming school year, will attend Chicago-Kent to study international law, with an emphasis on criminal law, and earn LLM degrees. The Mexican reforms do not include jury trials. Judges still will decide verdicts. Erickson said Mexico also has hired Americans from New Mexico and Arizona to build crime labs for them. “They realize they have no concept of forensic evidence the way we do,” he said. And although Mexico does have a criminal appellate court, “they are going to have to embrace the concept of precedent and stare decisis,” Erickson said, although the reforms have not yet gone that far.

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