Talking it over: the case of oral argument vs. printed document.

The spoken word will finally become mightier than its printed equivalent in the Mexican legal system, if the momentum created by a groundbreaking trial can cut a swath through the red tape of decades of written submissions.

The state of Nuevo Leon has conducted the first public trial in Mexico in over 70 years. The oral trial was held in open court at Montemorelos and filmed by cameras with lawyers standing up to verbally, if not verbosely, present their case, cross-examine and wind up their closing arguments in front of a judge, but not a jury.

Nineteen-year-old Alejandro Javier Santana was in the dock. He was accused of drunken driving and manslaughter, following a truck accident in which one person died and another was paralyzed.

Under the existing system the case could have taken months, involving reams of painstaking written submissions, which a judge would have had to leaf through and ponder before deciding innocence or guilt.

But in this case, it took just nine days for a verdict to be reached. The judge ruled Santana was not drunk, but found him guilty on the other charges, sentencing him to three years in prison and ordering him to pay compensation to the families of the victims.

President Vicente Fox has already presented legislation to Congress designed to reform the Mexican legal system. A key element of this would be to change trials from written to oral form nationwide. But everyone is still awaiting the verdict of Congress.

Roberto Palazuelos runs a busy criminal law practice in Mexico City. He explains that the present system, which some consider to be unwieldy and cumbersome, was not originally intended to develop in the form it has taken on. As he explained, a failure to read the fine print--a favorite pastime of lawyers--meant a significant amendment went unnoticed.

"In the original text of the Constitution of 1917, the congressmen established the possibility of having a trial jury, and in an oral form. But there were a great deal of congressmen who were opposed to this system. And therefore, since they had lost the vote, they decided to effect what we call a constitutional fraud. They changed the text of the Constitution as it was approved, to remove this trial-by-jury and in an oral form, and they established that it would be done in writing."

"When the text was passed for approval, and having read the whole, very lengthy text of 130 or so articles, the congressmen did not realize that the original text had been removed, and it was approved. And so this is why we have not had trial-by-jury or trial by oral argument in the Constitution."

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Cost Factor

Although the Fox-proposed legislation would make oral trials standard practice throughout the republic, Palazuelos stressed that there was an alternative way that this could happen.

"Let me point out that Mexico is a federal system in which the states are independent and sovereign. They have the right to create their own laws," he said. "So if the state of Nuevo Leon has its own law for holding trials in an oral form, it's possible that other states might pick up the trend."

But Palazuelos cautioned that cost would also be a salient factor, because with the oral trial system cases must be heard one at a time, with all the evidence and witnesses being present there and then. In the current written form, a judge can consider multiple cases during a working day. This, however, is not always the case.

"Actually the judge does not even look at the cases until the file is presented to him for final resolution," Palazuelos said. "And sometimes he does not even look at it since it is done by an aide preparing the final resolution report; and most of the time these projects of final resolution are accepted by the judge."

"So the system is flawed. Our criminal justice system, in that respect, is very negative."

Palazuelos added that under the current system a law clerk in the court can decide what will and will not go into the trial. "If we go to an oral procedure, there is no way they can do this," he added.

Luis Alfonso Madrigal is a member of the Mexican Bar Association's Council, and also a representative to the International Criminal Bar. He agrees with Palazuelos that the current system is not working properly because workload pressure means judges are sometimes not physically able to attend a court hearing since they are stuck in their offices checking file after file.

"A judge here in Mexico maybe writes between 300 and 500 sentences during the course of a year. That is more than one a day," he said.

"The oral system could be faster if we used stenographers or videos," said Madrigal. "The question is: do we have enough money to install these kinds of facilities in all courts throughout the country, and the number of judges to be present in each hearing?"

Madrigal said extra resources had already helped the existing system. Several years ago, there were only three appeal courts and it was necessary to wait as long as 16 months to obtain a resolution. Now there are 10 courts and the waiting time has been cut to two or three months.

He also said a crucial and time-saving change to the current Mexican legal system would be to move from an inquisitorial to an accusatory process, which means developing the main body of case evidence before a judge.

At present, the procedure happens twice, once before the official prosecutor, and again before the judge. Madrigal says he prefers the oral system, but with an accusatory procedure. Otherwise, he says, a new system would be worse than its predecessor.

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Winning Hearts And Minds

Alonso Aguilar Zinser, who represents Raul Salinas de Gortari and other high-profile clients, suggests changing the system from written to verbal form is going to be a "hearts and minds" operation.

"You're going to have problems changing the minds of the people involved in the procedures, including the lawyers, the prosecutors and the judges," Aguilar Zinser said. "I think we are going to have problems in the beginning, but I hope the most important achievement of this reform will be to obtain resolutions more quickly, because now some procedures take years."

Aguilar Zinser explained that another important option to move things along would be deal-making between the defendant and the court. For example, if the former pleads guilty, negotiation over sentencing could be undertaken with the prosecutor.

Palazuelos is all in favor of a new system to speed up the slow wheels of current procedure. For example, in Mexico today a wide variety of crimes which are deemed serious do not allow liberty on bail.

"It would solve the terrible injustice of people who are not guilty, who are subject to lengthy trials, and who are released after the trial has taken several years without any compensation," Palazuelos said.

Time For Change

But the time scale for changing from one system to another is a congressional chicken-and-egg situation. Aguilar Zinser says the mechanics would not take too long, but it's up to the politicians who currently hold the key and the stopwatch.

"When Congress approves the modifications of the federal Constitution and the federal criminal laws in no more than two years, all the states legislations will be modified according to this new system," he said. "But it's going to happen when the federal laws change."

"I think it's very possible in this government with President Fox that we will reach approval to modify this system."

Madrigal disagrees. "The law initiative presented by President Fox is being debated in good faith, but by people who don't know about the criminal procedure," he said.

"Time depends on budget and we have to convince the Chamber of Deputies in order to get the necessary funds to make this necessary change," Madrigal added. "But we have to establish a deadline of about two years for the first step."

Ernesto Soriano is a member of the Criminal Law Commission for the National College of Lawyers. He is also its representative to Congress concerning President Fox's proposed legal legislation. He says it is high time the law was changed.

"The criminal situation in Mexico is very different, compared to the legal system of the last century," Soriano said. "We need oral trials that guarantee clients a swifter administration of justice."

He also says a streamlined, more efficient criminal justice system would help further boost international business confidence in Mexico.

"For example, if a U.S. company comes to Mexico and makes a huge investment, and then an employee steals and the authorities are unable to jail this person in a short time, it is very frustrating for the firm. And the first thought in the mind of its executives could be, let's leave Mexico," Soriano said.

Judge Over Jury

None of this quartet of criminal lawyers is particularly keen for Mexico to have a jury system, rather than a judge, deciding criminal cases.

Aguilar Zinser said he did not think Mexico was ready for a jury system.

"With a jury, you deal with a lot of problems in the countries that already have the system. But in Mexico you have to consider another problem and that is corruption," he said.

"You also do not have a country with a high level of education," he added. "You need to have some average level of education to give people the possibility to judge others."

Palazuelos said he preferred the French system of three judges who are allowed to interrogate during the trial. "Everything is in writing and the three judges, who are trained judicial people, will make the final decision. This is much better than having a group of 12 unsuited or incompetent people decide a suspect's fate."

Although Mexican lawyers have to verbally present various legal submissions to judges as part of the present legal system, oral trials would be much more testing for their skills as orators and cross-examiners. So will they be able to cut the verbal mustard?

"I believe the vast majority ... have these qualities because they are well prepared. In the Anglo-Saxon system, this kind of theater is done to convince people who are not experts in the law. But in Mexico, in the future, this will be developed and displayed before a person who is an expert in law ... the judge," Madrigal said.

However, Soriano was not so sure. "I think it could be a real challenge for many colleagues."

In the current system, lawyers are able to cross-examine, but only indirectly. The lawyer poses the question, the court decides if the question is correctly posed and directly related to the case, and then puts the question to the witness.

Aguilar Zinser says this practice is "incredibly obsolete."

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"I think most lawyers in Mexico are prepared to cross-examine directly. It's going to be a good experience for us," he said.

James Blears is a Mexico City-based freelance writer and a correspondent for Standard Radio News in Mexico.