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🎓 Seminario de Litigación Penal — Transcript

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0:00Supreme Court of Justice of the Nation,
0:02through the Houses of Legal Knowledge.
0:06We welcome you to the First Section of
0:08the Seminar on Criminal Litigation,
0:11Techniques for Interrogation,
0:13Cross-Examination, and Objections in
0:15the Accusatorial System, which aims to
0:18provide participants with the
0:19analytical, dogmatic, and technical
0:22skills necessary to carry out, with
0:24methodological rigor, direct
0:26examination, cross-examination, control
0:29of prohibited questions, and the
0:31sequence for laying foundations. in an
0:35oral trial hearing. My name is Leopoldo
0:40Pérez, director of the House of Legal
0:42Knowledge in Ciudad Juárez, Chihuahua,
0:44and I will be moderating this broadcast
0:47. I will now proceed to introduce the
0:50distinguished authorities accompanying
0:51us to provide an opening message. First
0:55, I introduce Professor Claudia
0:57Ramírez Izúcar. She is the director
1:00of continuing education events for the
1:02General Directorate of the Houses of
1:04Legal Knowledge, and she will now share
1:06a few words with us. Go ahead,
1:07Professor.
1:10>> Thank you very much, Professor Leopoldo
1:11. Good afternoon to everyone following
1:14us through social media on the Supreme
1:16Court of Justice of the Nation's
1:18platform. Thank you very much for
1:21registering, for following us, and for
1:23actively participating in each and
1:26every one of the events that we
1:28coordinate and implement from this
1:30office for all of you. I give you the
1:33warmest welcome to the seminar on
1:35techniques for interrogation,
1:37cross-examination, and objections in
1:39the accusatorial system. Representing
1:43the director general of the Houses of
1:45Legal Knowledge, Beatriz Casas
1:46Arellanes, I convey her greetings and
1:48our enthusiasm for collaborating on
1:50this initiative, reaffirming the
1:52commitment of the Supreme Court of
1:54Justice. For the Houses of Legal
1:58Knowledge, each event represents a
2:00challenge. I want to highlight that
2:04this effort is the result of the work
2:06of the House of Legal Knowledge in
2:08Ciudad Juárez and its director,
2:10Professor Leopoldo Pérez Soto. I would
2:15also like to mention that this effort
2:17is supported by the broadcast, the call
2:19for participation, and the
2:21dissemination provided by the 35 Houses
2:23of Legal Knowledge and, of course, our
2:25historic headquarters in Ario de
2:27Rosales. Thank you very much to
2:31everyone. You are welcome, and of
2:34course, I wish you great success in the
2:37results of this event. Thank you very
2:40much. Thank you very much, esteemed
2:43Director. I thank Attorney Beatriz
2:46Casas Arellanes, director general of
2:48the Houses of Legal Knowledge, and of
2:50course you, Professor Claudia Ramírez
2:53Izúcar, for your support and guidance
2:55in making this space for legal updating
2:58possible. I also express my recognition
3:02to Magistrate Mirel Oralia Lozoya
3:04Molina for her valuable collaboration
3:06in this and other projects aimed at
3:08strengthening the capabilities of legal
3:10operators, the legal profession, and
3:12the general public. This seminar
3:16addresses the commitment promoted by
3:19our Chief Justice of the Supreme Court
3:21of the Nation, Hugo Aguilar Ortiz, and
3:23by the justices of our highest court,
3:25who have entrusted us with bringing
3:28justice closer to the people,
3:29strengthening legal training, and,
3:31above all, working to ensure the law is
3:34a tool at the service of those who need
3:36it most. In that sense, I would love to
3:41yield the floor to Master Mirel Oralia
3:43Lozoya Molina, who is a criminal
3:45magistrate in the state of Chihuahua
3:47and a member of the State Center for
3:49the Consolidation of the Criminal
3:51Justice System of this state's Court of
3:53Justice, who will address us with a
3:55message. Go ahead, Magistrate, please.
4:01Good afternoon to everyone following us
4:03through the different digital platforms
4:05. It is a pleasure for us to welcome
4:10you to this training session that today
4:12brings together, and I have to say it,
4:15more than 20,000 registered people. And
4:19this response demonstrates what we can
4:21achieve when we combine our joint
4:24efforts. My recognition to Master
4:28Beatriz Casas Arellanes, if you could
4:31please extend it on my behalf. I also
4:35greet with great pleasure Master
4:37Claudia Ramírez, who is part of the
4:40General Directorate of the House of
4:42Legal Knowledge, and I especially thank
4:45Dr. Leopoldo Pérez Soto, from the
4:47Directorate of the House of Legal
4:50Knowledge in Ciudad Juárez, since, in
4:52a short time, we have promoted various
4:55projects together that have allowed us
4:58to bring knowledge to more and more
5:00people. I also thank the Chief
5:04Magistrate of the Superior Court of
5:07Justice of the State of Chihuahua,
5:10Magistrate Marcela Herrera Sandoval,
5:12and Dr. Ricardo Márquez Torres, our
5:15speaker today. For us, there is
5:20something fundamental: to recognize,
5:22but above all, to take advantage of the
5:25enormous experience of retired judges.
5:31We have a lot to learn from those who
5:33dedicated years of their lives to
5:35administering justice and who today can
5:38transmit that knowledge to the new
5:40generations. And what better way to do
5:44it than through the best, and I believe
5:47one of the best is here, Dr. Ricardo
5:49Márquez Torres, present as a member of
5:51the State Center for the Consolidation
5:54of the Criminal Justice System, known
5:56by its acronym as Conspen. I thank all
6:01of you who are joining us, and may you
6:03all be welcome. Thank you very much,
6:07and I appreciate your kindness. Master
6:10Claudia Ramírez Izúar.
6:14>> Thank you very much, Magistrate. Well,
6:17continuing with today's session, we
6:19present the topic of direct examination
6:21of witnesses and experts, building the
6:23theory of the case. Before we begin the
6:26presentation, we ask you to keep the
6:29following in mind. For the development
6:31of each session. You can follow the
6:34event live on the "Casas de los saberes
6:37jurídicos" YouTube channel, and at the
6:40end of the broadcast, you must log in
6:42to the Moodle platform to evaluate the
6:45speaker. Without further ado, we
6:48welcome our speaker, Dr. Ricardo
6:51Márquez Torres, whose biography I will
6:54now read. Dr. Ricardo Márquez Torres
6:58holds a law degree from the Faculty of
7:00Law of the Autonomous University of
7:02Chihuahua. He holds a master's degree
7:05in Amparo Law from the University of
7:06Durango Santander. He is a Doctor of
7:09Law from the University of Durango,
7:11Chihuahua Campus, and holds an honorary
7:13doctorate from the Mexican Institute of
7:15Victimology, Civil Society, and the
7:17University Academic Cloister. He served
7:20as a judge in the adversarial criminal
7:22system for the Morelos Judicial
7:24District from 2008 to 2025. He is a
7:27founder and state coordinator of the
7:28Addiction Treatment Court. He is
7:31currently a practicing attorney and
7:33co-founding partner of the firm Lumar
7:35Corporativo y Servicios, based in the
7:37city of Chihuahua, Chihuahua. He is
7:40also a professor of administrative law,
7:43individual guarantees, constitutional
7:45law, criminal law, and criminal
7:47procedural law at various universities.
7:53He is an instructor, trainer, and
7:55speaker in more than 50 courses and
7:57diploma programs given in various
8:00federal entities, as well as in the
8:02Federal Judiciary Council—now
8:04judicial administration bodies—
8:06related to the criminal justice system
8:09in oral trials, legal argumentation,
8:11among other courses. Well, without
8:16further ado, I extend a warm welcome to
8:18you, Dr. Márquez, and I yield the
8:20floor to you. Please, go ahead. Thank
8:24you very much, Dr. Pérez Orozco. I
8:27would like to express my gratitude and
8:30join the thanks offered by Magistrate
8:32Lozoya for the invitation to
8:34participate throughout these four
8:36sessions and to share, in some way, the
8:39experience we acquired in the exercise
8:42of public office and currently from the
8:44private sector. My gratitude also goes
8:49to Professor Claudia Ramírez Zúcar.
8:52Please, also extend my thanks to
8:55Professor Beatriz Casas for the
8:58invitation, and of course, my
9:00recognition to Magistrate Lozoya, a
9:03woman who is extremely committed,
9:06proactive, and interested in continuing
9:09to provide training and achieving
9:12better jurisdictional activity. My
9:16recognition, Magistrate, as always, for
9:18this great commitment you have to
9:21continue preparing all the people who
9:23are part of the jurisdictional activity
9:26. Well, we will effectively be working
9:30over the course of four weeks, four
9:33Fridays in this time slot from 4:00
9:36p.m. to 6:00 p.m., and it is divided
9:39into segments. Today, as Dr. Presoto
9:43effectively mentioned, we are going to
9:45analyze the topic related to the direct
9:48examination of witnesses. In that sense
9:53, I must go straight to the topic
9:56related to this concept. Every trial
10:01has a stage in which the parties
10:04present their evidence with the goal of
10:09supporting their procedural claims and
10:13accounting for the promises they made
10:17during their opening statement or
10:21argument. Let’s place ourselves in
10:25this stage of the trial, where the
10:28moment has now arrived. We must be
10:32clear about this: as in every process,
10:35and specifically in criminal
10:38proceedings, we find a dispute between
10:41two opposing positions. There is the
10:45Public Prosecutor's, which aims to
10:48prove the facts subject to the
10:51accusation, establish the crime, and
10:54confirm the full responsibility of the
10:58accused, and the opposing position of
11:01the defense, which can be understood as
11:04a simply passive stance, to call it
11:08that, with the aim of destroying the
11:12version presented by the Public
11:15Prosecutor, or an alternative stance;
11:18that is, proving a different version of
11:21the facts than the one presented by the
11:24social representation. These opposing
11:30positions seek to convince an impartial
11:33third party, in this case, the judge or
11:36the collegiate tribunal, depending on
11:38the composition in each of the states,
11:41right? With the understanding that we
11:45are giving this seminar at a national
11:47level and therefore they have diverse
11:50configurations. However, these opposing
11:54positions seek, precisely, to convince
11:58that impartial third party that the
12:01version being presented, evidently
12:03documented through evidence, is what
12:06most closely adheres to what happened,
12:12so that ultimately this judge can make
12:14a proper decision in relation to the
12:17request made by the Public Prosecutor.
12:22Or the defensive arguments in the sense
12:25of, for example, insufficiency of
12:27evidence or the presentation of an
12:29alternative position. Yes? And it is in
12:33this stage of the trial that the
12:35principles of the accusatorial system
12:38are going to be enhanced. We are
12:41obviously talking about publicity,
12:43immediacy, and concentration. When we
12:47are already in this stage of the trial,
12:50we must understand that the phases
12:53prior to the development of the trial
12:57have had as a central objective the
13:00development of a theory of the case.
13:06This theory of the case is
13:08strategically oriented toward the
13:11actions of the prosecution and the
13:14defense and gathering all the data or
13:18means of proof, evidentiary data that
13:21will bring the evidence to life as such
13:25during the trial. It is important to
13:30allude to the theory of the case, even
13:32when we are focused on the direct
13:34examination of witnesses. The
13:38recommendation is that this theory of
13:40the case should be started from the
13:42very moment you have contact with the
13:45case. Whether from the prosecution's
13:50side, at the moment a report or
13:53complaint is received, you must begin
13:55developing the theory of the case; and
13:59on the defense side, from the moment
14:01representation of the defendant is
14:04assumed, whether by a public defender
14:07or private counsel, based on the fact
14:12that currently and in practice we see
14:15that this theory of the case is often
14:18lacking, which directly impacts
14:20strategies, uh, this strategic
14:23orientation, or this task of convincing
14:26the impartial third party. And let us
14:31remember that within the structure of a
14:33theory of the case, we start from three
14:35essential components. Yes, I will refer
14:39to it in a generic way to be able to
14:41situate ourselves at the moment of the
14:43direct examination of witnesses. The
14:46theory of the case consists of these
14:50three components: the factual component
14:54, which is the fact we intend to take
14:57to trial and prove; the legal component
15:01, which is the legal classification we
15:05are going to assign to this fact or
15:08factual component; and the evidentiary
15:12component. That is to say, what we have
15:18to demonstrate that fact and its
15:21correspondence with that legal
15:24classification or legal standing. But
15:30it not only shares these three
15:32essential components—factual, legal,
15:35and evidentiary—but also requires
15:37identifying how we are going to prove
15:40this position or version we are taking
15:42to trial. And for that, we must develop
15:47within our theory of the case which
15:50evidence allows us to prove each of the
15:53factual propositions, right, which are
15:56those aspects we must demonstrate or
15:59prove from the position we will occupy
16:02in the trial to convince this third
16:04party. And this implies the evidence we
16:10have, the order of its presentation,
16:14and obviously, what the support and
16:17importance of said evidence is. Our
16:22theory of the case must also include
16:25weaknesses, and we are talking about
16:27both our own weaknesses and the
16:30weaknesses of the counterparty. Within
16:34the theory of the case, it is essential
16:37to identify one's own weaknesses as a
16:39mechanism of anticipation. The impact
16:44generated on a judge is not the same if
16:48we are the ones disclosing or
16:51anticipating hypotheses that could
16:54constitute a weakness in the theory of
16:58the case we are presenting, compared to
17:01it being the counterparty who exposes
17:05these weaknesses. It is also important,
17:10throughout the pre-trial stages, to be
17:13able to determine if one's own
17:15weaknesses have already been identified
17:17by the opposing party at some point. If
17:22they have already been identified by
17:25the opposing party, we know that this
17:27weakness will necessarily be addressed,
17:30because it also allows us, when I
17:33mentioned anticipating weaknesses, to
17:35know to what extent we can
17:37strategically disclose them if the
17:40opponent has not noticed that possible
17:43weakness. Yes. And this evidently
17:46denotes the absence of a theory of the
17:48case from the opposing party. and the
17:52weaknesses, obviously, of the opposing
17:55position to highlight them before the
17:58judge. One's own weaknesses do not have
18:02the same impact, as I already mentioned
18:04, that they can generate on a judge if
18:07we are able to anticipate these aspects
18:09. In such a way that the theory of the
18:13case—and in some cases it has been
18:15understood, I believe, misunderstood—
18:17what its function is, exclusively
18:20developing it for this stage of the
18:22trial. The theory of the case is built
18:26from the moment, I reiterate, that one
18:28has the first contact with the
18:30particular case, whether from the point
18:32of view of the public prosecutor or
18:34from the point of view of the defense.
18:38From that moment, a theory of the case
18:42must be developed based on these
18:44components, which is obviously
18:47constantly being fed back throughout
18:50all the previous stages, in a way that
18:53allows us to direct or redirect the
18:56investigation or the defense toward
18:59specific points that we perhaps had not
19:02visualized at first. In such a way that
19:08, without going into much detail, the
19:11theory of the case turns out to be
19:13essential to be able to orient, I
19:16reiterate, these strategies toward the
19:19prosecution or defense actions in the
19:22corresponding trial. Returning to the
19:30subject of witnesses at this stage of
19:33the trial, one of the essential or
19:36central pieces of evidence in the
19:39adversarial system is precisely one's
19:43own witnesses. That is, those who will
19:49support us in some part. Perhaps there
19:55will be witnesses who can also support
19:59our theory of the case to a large
20:03degree, that is, the strategic version
20:07that the party will develop during the
20:11corresponding trial. And it is
20:15precisely one's own witnesses who will
20:21constitute and develop the oral trial.
20:28The theory of the case for each party,
20:32regarding all the investigation and
20:36trial preparation, will have, among
20:39other aspects, the mission of defining
20:43which witnesses truly constitute a
20:47support for our theory of the case.
20:54Hence, obviously, the importance held
20:57by the objective of the trial is the
21:01direct examination technique, since
21:04through this direct examination
21:06technique, we will manage to extract
21:10sufficient effective information to
21:13provide to the judges, and ensure that
21:18the information that arrives allows for
21:21the accreditation of the version of the
21:25party being represented. See here the
21:30importance, the importance of our own
21:33witnesses as a fundamental or central
21:37element that will allow us to influence
21:40the conviction of that third party
21:43extraneous to the conflict, yes? That
21:47is to say, the judge who, at the end of
21:50the trial, this impartial third party,
21:53will have the obligation to make the
21:56decision as to which of the two
21:58antagonistic positions, in accordance
22:01with all the evidence produced during
22:04the trial, turns out to be the most
22:07consistent and the closest to the
22:09historical truth of the facts. That is
22:14why it is fundamental to manage to
22:17develop all the stages of, uh, witness
22:20identification. And this goes back to
22:25moments prior, not just the trial, what
22:29is direct examination, but the phases
22:32prior to the testimony of one's own
22:36witness, which we will address
22:39throughout this afternoon, in such a
22:43way that we can define direct
22:46examination as the questioning of one's
22:50own witnesses during the course of the
22:53trial. Through those questions that are
22:59asked in accordance with oral
23:02litigation techniques, which is another
23:04of the aspects or topics that we will
23:07address in the third session, that is
23:10to say, in two more Fridays. Objections
23:15, on the basis that all questions asked
23:19of witnesses must comply with the rules
23:23of fair play, oral litigation. That is
23:30to say, that the information reaching
23:33this impartial third party comes
23:36through the witness and not the
23:38interrogator. And for that, these
23:43litigation techniques are established,
23:46along with these formalities or these,
23:49uh, questions formulated by the
23:51litigator presenting them. And for that
23:57, regarding the opposing party's
23:59witnesses, which we will see in the
24:01next session, cross-examination, what
24:03is the purpose of a cross-examination?
24:07Yes, in that vein we can describe or
24:10conceptualize what the direct
24:12examination of witnesses is, yes? This
24:17extraction of information through the
24:21rules established in the criminal
24:25process for the construction and
24:29development of our theory. This implies
24:37or also entails the designation of
24:41one's own witness. This "own witness"
24:47refers, as I was already anticipating
24:51to you, to the fact of selecting which
24:55witnesses are going to contribute the
24:59information to the party presenting
25:02them. And this has to do precisely with
25:07the quality of those own witnesses. We
25:11are going to look at some
25:13identification phases for witnesses who
25:16are truly useful for our version of
25:19events and the stages in which we must
25:22carry them out. Obviously, for this, we
25:28speak of a specific witness being
25:31considered useful and relevant. Not all
25:36witnesses can be identified with these
25:38characteristics. Utility and relevance
25:42for the parties in the trial, but
25:46rather, each of the parties, as we
25:49mentioned through the construction of
25:52the theory of the case throughout the
25:56pre-trial stages, allows us to identify
26:01those individuals whose information
26:04provided is useful to the version I am
26:08bringing to this dispute, right? And
26:13also the capacity that this witness has
26:17to reinforce your hypothesis or version
26:25. In that sense, we have the
26:28preparation of the direct examination.
26:33This direct examination of witnesses
26:36possesses, as I have been mentioning,
26:39various phases of successive
26:41approximation. Right? That is to say,
26:46from the point of view of the examiners
26:48, we speak of the Public Prosecutor or
26:51the defense, according to the position
26:53or version they will represent in the
26:55trial. Each of them, the social
26:59representative or defense attorney, has
27:03to conduct a brief analysis of the
27:06ideas and strategies that must be taken
27:10into account at the moment of the trial
27:14. The first phase is the selection of
27:18these witnesses. This first phase is
27:22faced once there is clarity regarding
27:27the theory of the case. Note the
27:33importance of building this theory of
27:36the case throughout the previous stages
27:39, and we speak of it as a synoptic
27:42chart in which we contemplate six or
27:45seven essential ideas. Factual
27:49proposition or factual component: how,
27:54when, where, why. They are the integral
28:00elements of the factual component,
28:03right? What happened? Where? When? How?
28:07Why? Yes. The legal component, the
28:11classification that we are going to
28:14grant to that fact with its
28:16circumstances modifying responsibility
28:19and that lead precisely to factual
28:22propositions, what we must demonstrate
28:25for each of the elements in our version
28:29or factual component and those figures
28:32modifying responsibility, whether they
28:36be aggravating or mitigating, right?
28:40And obviously the evidentiary component
28:43, which is where the witnesses will
28:46precisely enter. This theory of the
28:50case also entails which witnesses,
28:52which experts, which information, and
28:55which evidence is useful for my version
28:57. The order of presentation, right? And
29:03the weaknesses that my theory of the
29:05case may have and the weaknesses of the
29:08counterpart. I was telling you that it
29:13is not the same to highlight or
29:15anticipate a possible weakness of my
29:18case as it is for the counterpart to be
29:21the one to point it out. A very simple
29:26example regarding how we can anticipate
29:29a weakness in our version of events. I
29:35remember my first case as a judge, and
29:38I keep it very much in mind for that
29:41particular reason, and obviously also
29:44because of the didactic importance of
29:47that event. An aggravated homicide. Of
30:00municipal public security in a
30:02municipality in the state of Chihuahua,
30:05in which the circumstance modifying the
30:08responsibility was basically an
30:10aggravating factor for falling upon or
30:16having been committed against a person
30:20in charge of the administration of
30:24justice. But the component or the
30:30aspect, one of the elements for the
30:33accreditation of this aggravating
30:35factor, is that the person in charge of
30:38the administration of justice must be
30:41carrying out their activities in
30:43accordance with the law. This is
30:47basically how this aggravating factor
30:49is mentioned in the Penal Code of the
30:51State of Chihuahua in its article 136.
30:56The specific issue was that this
30:59officer was in a very small community
31:01where the victim was the commander, and
31:04they had only, and exclusively, one
31:06police officer. That is, one commander
31:10and one police officer. And that is
31:13important to establish because,
31:15ultimately, this implies, right? Beyond
31:18the fact that there could be a day of
31:20rest, they could ultimately be
31:21exercising these functions 24/7. Yes,
31:2524 hours a day, 7 days a week, in
31:27response to the needs of the service,
31:30right? Unlike communities where rest
31:32periods are previously established.
31:37Here, in this particular case, the
31:40commander was requested for support; he
31:44arrived at the scene, where he was
31:46surprised by the defendant, the active
31:50subject, who, without any discussion or
31:53words, got out of a vehicle and plunged
31:56a knife into his chest, wounding him,
31:59with the commander losing his life
32:02right there. Yes. One of the essential
32:08aspects is that when the autopsy was
32:12performed, it was determined that the
32:15victim had a blood alcohol
32:17concentration corresponding to, I don't
32:21recall if a first or second degree, I
32:24don't remember exactly. The relevant
32:30issue here is that this information was
32:32known to the Public Prosecutor's Office
32:34. From the moment they received the
32:39autopsy report, they had that
32:41information, and this can clearly
32:43constitute a weakness in the Public
32:46Prosecutor's version or strategy, due
32:48to what I mentioned about the final
32:51content of the article regarding this
32:54aggravating factor; that is, that he
32:56must be performing his duties in
32:59accordance with the law. This weakness,
33:04if we are clear about it, right? When
33:07developing this theory of the case, the
33:10impact it will have on the judge is
33:13very different if it is anticipated,
33:15and there is a way to be able to
33:18anticipate this weakness. Well, to tell
33:22them, Your Honor, in this particular
33:25case, the version of the facts is fixed
33:28regarding this particular subject.
33:32Surely the defense will introduce
33:34aspects to the effect that the victim
33:37had a blood alcohol concentration of
33:40such a percentage, which leads to a
33:42first or second-degree classification;
33:45that is the simple way to anticipate a
33:48weakness in the theory of the case.
33:52That is to say, Your Honor, surely the
33:54counterparty will establish these
33:55aspects. I am anticipating it there to
33:59reinforce it by saying, while it is
34:01true that the victim did indeed have
34:04this concentration, this does not imply
34:06a violation of their duties; they were
34:09following a protocol, right? For
34:11example, that is the way we would be
34:14anticipating this weakness. See that it
34:18is very different for the Public
34:20Prosecutor in this case, or the defense
34:22, according to the presentation being
34:25made, to anticipate or reveal this
34:27information to the one who will make
34:29the decision. Right? However, if this
34:34weakness is not being anticipated, but
34:38the counterparty exposes it, then
34:40obviously the impact will be very
34:43different. And this has to do precisely
34:48with aspects of identifying our
34:50evidence and also the development and
34:52construction of our theory of the case
34:55from the point of view of weaknesses,
34:57both our own and the counterparty's.
35:02Returning to this topic of identifying
35:06or selecting witnesses, we obviously
35:10must establish that only by having this
35:14theory can we define if that person we
35:18intend to bring to trial as a witness
35:22and whom we have before us would be
35:26useful for our version. And is
35:30therefore necessary to bring to the
35:33trial. I believe that we also need to
35:39work a lot on building operators of a
35:42system based on the identification and
35:46needs of the conflict. What do I mean
35:50by the conflict? In the sense of
35:55working adequately and specifically on
35:57what I am looking for in a trial. Yes,
36:02we see this very frequently, and it is
36:06a matter that I always, as a judge,
36:08questioned repeatedly and that now, on
36:11the other side of private practice, I
36:14try to encourage, right? Which is
36:19precisely evidentiary agreements: the
36:22identification of a congruent,
36:25effective version to be able to focus
36:28on the trial, understood as this stage
36:31in which I will have to present
36:34evidence only for those aspects that
36:37are truly controversial. Yes. And here
36:42is the most practical, simplest example
36:45that we can observe daily. In the
36:50matter of homicide, we do have
36:52scientific certainty that a person lost
36:55their life, including the circumstances
36:58in which they lost their life and the
37:01cause of death. This is through reports
37:06on field forensics and forensic
37:09medicine, and it is an aspect that is
37:12uncontroverted. And, in practice, it (
37:17in jurisdictional practice) always
37:19raised this doubt for me: what is the
37:22need? I must even, uh, highlight that I
37:26had the opportunity to exercise
37:30jurisdiction in both the investigation
37:34or control phase and the trial stage.
37:39At least here, my understanding is that
37:41the majority of the states in the
37:43country have this duality. Here in the
37:47state of Chihuahua, uh, the separation
37:49has remained; the separation of these
37:51functions has remained, and it is
37:53important because, from the point of
37:55view of the control judge in the early
37:58stages, understanding how to admit
38:03evidence and the form of admission that
38:06can be transmitted to the presentation
38:09of that evidence itself during the
38:12trial. That is to say, as a control
38:16judge, I questioned what need there was
38:19to bring to trial the debate regarding
38:22whether the victim lost their life, the
38:26conditions, and the cause of death when
38:29that hypothesis or version is not
38:32questioned. Yes, with difficulty and in
38:36very specific cases, and I am not going
38:39to generalize that every particular
38:42case requires the construction of a
38:44theory of the case, and based on that
38:47theory of the case, I will be able to
38:50establish my strategy, my actions that
38:53I am going to take before the judge in
38:56this trial stage. Well, we cannot
38:59generalize, but I would dare to say
39:02that in a large percentage, 70-80%this
39:07issue in homicide crimes is not
39:09controversial. Perhaps some aspects
39:13relative to the cause of death; that
39:15has to do with whether the direct cause
39:17of the loss of life was the conduct
39:19being attributed to them. It seems that
39:23these could be the hypotheses that,
39:25indeed, according to a duly structured
39:28theory of the case and a strategy, I
39:30can raise as a controversial issue in
39:33the trial. But see the difference. If
39:37as a defender my version is focused
39:41solely on responsibility, these are
39:45aspects where I could take the fact as
39:49proven, these factual propositions,
39:52even the legal proposition. There is no
39:57doubt that we are in the presence of a
39:59homicide. The topic has to do with what
40:02I already anticipated, or mentioned to
40:05you, alternative positions of the
40:07defense. And those alternative
40:10positions also, according to a theory
40:13of the case, allow us to identify
40:16whether the event happened or did not
40:19happen. If the event occurred and is a
40:23crime, if the event occurred, if the
40:26event is a crime, but if there is no
40:29exclusionary circumstance of
40:31responsibility, if the event occurred,
40:34if the event is a crime, if there is no
40:37cause that excludes the crime, and it
40:40was the accused who committed it. And
40:44this is where the defense's alternative
40:47positions come in regarding the fact
40:49that the event effectively occurred,
40:52the fact constitutes a crime, however,
40:55there is an alternative position that
40:58an exclusionary cause is updated, that
41:01is, the event occurred in the terms
41:04established by the prosecutor, but
41:06there is a cause, a state of necessity
41:09or some legitimate defense. Yes. So, in
41:14that vein, the witness must be
41:17evaluated in general terms and accepted
41:20according to the statement in
41:23investigation stages, that is, with
41:27their strengths and their weaknesses.
41:31Yes, we continue to establish as a
41:36second phase that the witness must also
41:39be analyzed in terms of the coherence
41:43their version possesses with the
41:45versions of other witnesses. We
41:51generally speak of a plurality of our
41:54own witnesses and we have to perform an
41:56exercise of weighing and reasonableness
41:59. in relation to the coherence of the
42:04version of the hypothesis that that
42:06particular witness is proposing to me
42:09in light of other witnesses to
42:11determine if they turn out to be useful
42:14for the trial. In this way, it is
42:20probable that although a witness may be
42:23of high quality, we will preferentially
42:27seek those witnesses who become more
42:31coherent and self-sufficient according
42:34to our theory of the case and who
42:38result in being consistent with each
42:41other. This is one of the
42:44characteristics precisely of the
42:46elaboration of a theory of the case,
42:48yes? Coherence and utility. Yes. As a
42:55third phase, the witness must be
42:58credible. Indeed, once the knowledge
43:05and coherence are evaluated through the
43:08statement of that witness with others,
43:12we will determine if they are credible
43:15before impartial third parties. Yes,
43:21because remember that ultimately our
43:25fundamental objective is to convince
43:28the judge that the version we are
43:31presenting is the most adequate to the
43:35truth. Yes, in that sense, that this
43:41witness be credible. What is the
43:48methodology to carry out the exercise
43:52of approaching the selection of a
43:55witness? We have a methodology that is
44:00proposed to us for the purpose of
44:03identifying who these witnesses are.
44:08Obviously, we are going to take into
44:11consideration the elements that we have
44:14outlined through our construction of
44:17the theory of the case, and it still
44:20remains to define, even if in a
44:22certainly very general way, some
44:25aspects related to the way in which the
44:28litigator must approach the witness.
44:33And this is precisely when we talk
44:35about carrying out certain steps or
44:37complying with certain data. Yes, a
44:42witness interview must be conducted in
44:45a place that is reasonably comfortable
44:48and friendly for the witness. Yes. And
44:53we talk, uh, and it is also very
44:55important when we speak of witness
44:57preparation that it refers to this
44:59particular point, right? The meeting or
45:03the interview with that witness in a
45:06place that turns out to be comfortable
45:09for that witness. And it is at this
45:13moment that witness preparation is also
45:16confused with coaching a witness, right
45:19? Witness preparation is this interview
45:23based on informing them what is going
45:27to happen at trial. And we see this
45:30from the stance of the social
45:32representation or the Public
45:33Prosecutor's Office. How many times, I
45:37mean, I mention this because, uh, this
45:39institution is generally the one that
45:42presents the greatest evidentiary
45:44burden of witnesses, witnesses, victims
45:46. And in that sense, well, the lack of
45:52perhaps sensitivity, to put it one way,
45:56to interview the witnesses before the
45:59trial, especially the victims, to
46:01inform them of what will happen in this
46:05stage. How many times do we see victims
46:10who are not clear about the
46:12participation they will have in the
46:16trial, and this, evidently, must be
46:19made known to the victims from the
46:22moment they file the complaint. Many
46:26victims are left with the understanding
46:29, with a false appreciation, that going
46:32to report the facts is the only task
46:35they will have to perform in the
46:38process, and we see that it not only
46:41implies being called to the trial, but
46:44they could be called in earlier stages,
46:47at the continuation hearing of the
46:49initial one, to controvert certain
46:52information. It is the sensitivity of
46:57informing victims of the role that they
47:00and the witnesses have in the trial.
47:04This is the preparation of indicating
47:06what the scenario is in which a trial
47:08is going to unfold. Yes, look, it's a
47:12scenario, a courtroom in which the
47:14Public Prosecutor is present, the legal
47:16advisor is present. On the other side,
47:22we find the defense, the accused, and
47:25the judge or judges. Yes. The scenario
47:30or the dynamic is precisely the
47:32identification of that witness, the
47:34legal warnings, right? So that they
47:38conduct themselves truthfully in
47:40relation to what they are going to tell
47:43the court and the dynamic of the
47:45presentation of their statement. That
47:47is to say, who is going to start with
47:49this direct examination? that is, the
47:52offeror of the evidence, the rules to
47:55which they must adhere, and most
47:57importantly, the cross-examination that
48:00they will have to face from the
48:02opposing party, which we will see in
48:05the next session, the specific purposes
48:08of that cross-examination. Yes. Second,
48:13we talk about an interview that must be
48:16considered as a first aspect, that is,
48:19the introduction of the interviewer and
48:22the explanation of their role in the
48:25case. If it is the Public Prosecutor's
48:30Office, say, "I am in charge of the
48:32investigation and responsible for
48:34conducting the direct examination at
48:36trial." Third, the interviewer must
48:42take the necessary time to explain to
48:46the witness how the penal system works
48:50and the procedural stage of the
48:54specific case, as well as what their
48:58rights and obligations are. The
49:02interviewer, as a fourth aspect, must
49:06ask direct and simple questions to hear
49:09from the witness regarding the
49:12information they possess. And look at
49:16the importance of this witness
49:19selection. At no time should
49:23conclusions be forced or sentences
49:27finished that do not belong to the
49:31witness, so that they can be provided
49:35with a reliable version, which the
49:40witness truly knows how to express. Yes
49:45? What is the most, uh, or the most
49:50illustrative example we could use in
49:53this regard? Often, witnesses are asked
49:59what their intention is in coming to
50:01testify during a trial, and look how
50:03important it is that the interviewer
50:06only explains and allows the witness to
50:09be the one who provides the information
50:11. For example, the interviewer tells
50:16the witness, "What would you answer, or
50:20answer, assuming the opposing party
50:24asks you the reasons why you are going
50:28to testify at trial," and they are
50:31being given a conclusion or led to
50:34answer in a certain way, yes? For
50:39example, if the opposing party were to
50:42ask you the reason why you have come to
50:45testify, yes? Say that you do it
50:49because of the high value you feel for
50:53justice and love for the truth. This is
50:58information that does not come from the
51:01witness, yes? But is instead being
51:04incorporated by the interviewer. One
51:08way to do it is rather to question, yes
51:10? "Witness, if you were asked the
51:14reasons why you have come to trial,
51:17what would you answer?" Look how
51:21different the treatment being given to
51:25the witness is, and this would imply
51:29listening to the witness's response to
51:32know if it is satisfactory according to
51:36their own, uh, version. Well, uh, I
51:41understand, we are going to work these
51:422 hours. Uh, in approximately one hour,
51:46at 5:40 PM, we will open a brief space,
51:50a short segment for questions and
51:54answers, so that they can be sent to me
51:58in due course to also provide
52:01participation if you have any questions
52:05regarding these points, right? So,
52:11notice how we are approaching the
52:13selection of these witnesses, and
52:16within the direct examination, we have
52:19types of questions that should be used
52:22during the direct exam. And once we go
52:29through the previous stages of
52:31identifying our witnesses and selecting
52:33those witnesses, we will, according to
52:36the theory of the case, determine what
52:38type of questions we will ask each of
52:41our witnesses in the direct examination
52:44. This implies that, once the witnesses
52:50who will be brought to trial are
52:53defined and selected, it is necessary
52:57to create a template that will contain
53:00our theory of the case and analyze the
53:03aspects related to the statement of
53:07each witness. When we pointed out that
53:12there are factual propositions that we
53:14have to demonstrate—in this case, we
53:17will continue along the same line of
53:19the examples we have used in the crime
53:22of homicide—we are talking about the
53:24factual propositions that we will have
53:26to prove, right? The deprivation of a
53:30person's life, right? An essential
53:34element: the pre-existence of that
53:36human life, that this deprivation was
53:39caused by a third party, and a causal
53:42link between this conduct and the
53:45result. And there could be other
53:49factual propositions related to
53:51circumstances that modify
53:52responsibility, yes? Qualifying
53:55circumstances, yes? Premeditation,
53:57taking advantage, treachery, any other.
54:00Total ferocity, et cetera. So, based on
54:04this elaboration of factual
54:05propositions, we are going to identify
54:08our witnesses. We already mentioned it,
54:12to prove a part. It is impossible for
54:15one witness to give us a version of all
54:17our factual propositions. That would be
54:22the ideal witness. However, each
54:24witness, in general and in practice,
54:27contributes a portion or a version of
54:29these factual propositions. Regarding
54:36the topic related to the deprivation of
54:39life. There will be other witnesses who
54:42can justify the pre-existence of human
54:45life as an indispensable requirement.
54:48Yes, we also have the experts who will
54:52corroborate this technical aspect.
54:57Finally, they are subject to the rules
55:00of direct examination like the
55:03witnesses themselves, and also which
55:05witness or which piece of evidence will
55:08serve us for the accreditation of each
55:11of those factual propositions. To the
55:16extent that we have already identified
55:19our witnesses, we will develop,
55:22according to this template, which
55:24questions should be asked of each
55:27witness. If this witness helps me prove
55:31an essential condition, the
55:32pre-existence of human life, then I
55:34will question them regarding prior
55:36circumstances, right? How, where they
55:40were, who was present, what conduct the
55:42victim was carrying out. In short, we
55:46have that witness identified
55:48specifically for a portion or this, uh,
55:52factual proposition. And these types of
55:57questions are obviously aimed, yes, at
56:01developing the information that
56:04indicates what our theory is. of the
56:09case. Yes. That is why I reiterate the
56:13importance of working constantly with
56:16our theory of the case, which we will
56:19boost during the trial. What are the
56:25questions that are generally asked to
56:27the witness? We will see a little
56:30further on. We will see what structure
56:34we must follow to question our
56:37witnesses. And basically, we are
56:40talking about three or four scenarios.
56:43Yes? Well, let's look at the next
56:47aspect to consider: the analysis of the
56:50structure and questions to be asked
56:53during the direct examination of
56:55witnesses. Yes. What types of direct
57:00examination are we going to develop? Uh
57:03, when we talk about this direct
57:06examination, it must be analyzed and
57:09prepared in a way that facilitates our
57:11witness's testimony and, most
57:13importantly, the court's understanding
57:16of that information. This implies that
57:22we are interested in who provides the
57:26case information, seen through,
57:29obviously, defining the formula by
57:32which these questions will be asked.
57:37Yes? And in that regard, we can
57:41establish several aspects of this
57:44examination. We have, uh, a
57:47chronological examination, yes? or a
57:50thematic examination, a chronological
57:55examination and a thematic examination.
57:58It is very important, and obviously I
58:01must understand that due to the number
58:04of participants in this seminar, we
58:06surely have diverse profiles, right? In
58:11that sense, it is important, through
58:13this selection of our witnesses, how we
58:15are going to develop the examination,
58:17yes? whether it is done chronologically
58:21or thematically. And it has a lot to do
58:26with when one sees it from the judge's
58:29point of view; they know how to
58:31perfectly identify the version or type
58:34of examination the questioner is
58:37conducting. These two are the ways of
58:41carrying out the interrogation. A
58:43chronological examination, which is a
58:47first advisable formula to request that
58:52the witness narrate the facts to us in
58:56a chronological way, that is, moment by
59:00moment. Indeed, we can find in a fact
59:06sequences of those fragments or these
59:10factual propositions. which turn out to
59:15be easier to convey to the extent that
59:19they are carried out respecting a
59:22chronological order of events, that is
59:26to say, reproducing them in a sequence
59:29that adjusts to the times in which the
59:33events unfolded, without altering the
59:36temporal order of such occurrences. How
59:42do we work this chronological
59:43examination? Very well. Let's see, Mr.
59:47Pérez, narrate or explain to us what
59:50happened at 8:00 a.m., and he narrates
59:54to us chronologically what took place.
59:59At 8:00 a.m. I left my home, and I
1:00:02noticed this particular circumstance.
1:00:05Very well, we are talking about a first
1:00:07moment, 8:00 a.m. What happened next?
1:00:10Yes. Well, at approximately 8:45 a.m.
1:00:15So, we are taking this successively,
1:00:18chronologically, he is narrating it
1:00:21from moment to moment, reproducing it
1:00:24without altering the order of such
1:00:27events. This is a chronological
1:00:31examination. The above can be easier
1:00:35for structuring a witness's account and
1:00:39for the court to understand details
1:00:43that otherwise would turn out to be
1:00:47unclear or illogical. Yes, when they
1:00:51narrate it to us from moment to moment.
1:00:54Very well, you already indicated what
1:00:56happened at that time, what happened
1:00:58next? Yes. And we guide our witness,
1:01:02which has a lot to do with the
1:01:03selection of the people we are going to
1:01:06present as our own witnesses, regarding
1:01:08the skill or capacity that the
1:01:10witnesses have. Surely we have seen
1:01:14that there are witnesses, or you will
1:01:17have seen that there are witnesses who
1:01:20have a great capacity to develop a
1:01:22story with only one question. Yes, to
1:01:26tell them, and that also corresponds to
1:01:29the identification of our witnesses,
1:01:32the ability or the weakness that can,
1:01:35the strength or the weakness that
1:01:38witness can present. A witness who has
1:01:43a strength, to call it this way, is
1:01:47that witness who is capable of building
1:01:50an entire version or an entire
1:01:53hypothesis of the case with a single
1:01:56question. Mr. Pérez, narrate what you
1:02:02have knowledge of regarding the facts
1:02:03or the reason why you are here. Narrate
1:02:06or explain to the court regarding the
1:02:09facts. And that witness has the ability
1:02:12to develop an entire version. Yes,
1:02:16indeed, I am here because on July 20th,
1:02:192025, at approximately 8:00 a.m., I was
1:02:21at my home, and he is capable of
1:02:24developing an entire story. That
1:02:28ultimately can, can come to represent a
1:02:31strength of our witness. Yes. and
1:02:36obviously with certain techniques the
1:02:39questioner uses to interrupt the
1:02:41witness regarding information that
1:02:44proves relevant, and through these
1:02:46litigation techniques, we are
1:02:48ultimately talking about a competition
1:02:51between two opposing accounts that we
1:02:54seek to win, right? That is, to
1:02:57convince a third party. In that sense,
1:03:01it is an entire strategy developed to
1:03:04be able to present the version. Even
1:03:08though that witness has the strength to
1:03:12develop an entire version, we can
1:03:15interrupt in a very prudent way to be
1:03:18able to extract quality information.
1:03:22Let's see, Mr. Perez, allow me a moment
1:03:24. You just pointed out that the vehicle
1:03:27was, could you repeat the
1:03:29characteristics of the information we
1:03:32consider relevant so that the court can
1:03:34even detect that this information turns
1:03:37out to be valuable for the interviewer?
1:03:41Yes? And we also have the examination,
1:03:47the thematic type of examination. This
1:03:53is a second formula that we are going
1:03:58to take into consideration, which is
1:04:02the thematic type, in which a temporal
1:04:06approach is discarded to favor major
1:04:10topics. or facts that you want the
1:04:14witness to narrate, asking them about
1:04:19the same in an order determined by the
1:04:21relevance of the topic to be addressed.
1:04:25these are the two tools or formulas we
1:04:28have to extract information from moment
1:04:31to moment. This is done chronologically
1:04:35, it also has a lot to do with
1:04:37identifying and with the capacity or
1:04:40strength of our witness, and the
1:04:43thematic examination, that is, those
1:04:46facts we consider essential or relevant
1:04:49topics for the witness to narrate. And
1:04:53this thematic examination is very good.
1:04:57And this also has a lot to do with the
1:05:00way of interviewing or questioning, or
1:05:03rather, questioning our witness at the
1:05:06time of trial with transitions, right?
1:05:11the importance of carrying out
1:05:13transitions, because ultimately when we
1:05:17are, and I say this from the point of
1:05:20view of the judge, when the witness
1:05:23begins to narrate facts for
1:05:25approximately 20 or 25 minutes, the
1:05:28ability to retain the information being
1:05:31provided can start to be lost. That is
1:05:35why it is important that even when that
1:05:38witness, for example, is capable of
1:05:41developing the whole story, they can be
1:05:44interrupted at the right moment by the
1:05:47questioner in a strategic way to
1:05:49address relevant topics, and this is
1:05:52what transitions imply. We mark
1:05:55transitions or changes that even
1:05:58capture the attention of the judge.
1:06:02Let's think under this hypothesis that
1:06:05our witness already narrated the whole
1:06:07version to us and a thematic aspect, a
1:06:10way of examining in this second formula
1:06:12or this second tool, saying, "Very well
1:06:15, thank you very much Mr. Perez." You
1:06:18have just narrated everything related
1:06:21to the vehicle. Now we are going to
1:06:24talk about the weapons. Yes, see how we
1:06:27make a transition, and this is relevant
1:06:30even to capture the attention of that
1:06:33impartial third party, the judge. Ah,
1:06:36it is important, you have already
1:06:38finished talking about an essential
1:06:39aspect, right? About the vehicles or
1:06:41the people involved, or the specific
1:06:43circumstances of how the event took
1:06:45place. We are going to change the
1:06:48subject to, for example, uh, the
1:06:50aggressors. Yes, we make these
1:06:52transitions. You say, "Thank you very
1:06:53much. We are finished with this topic.
1:06:55Now we are going to talk about, uh, the
1:06:57weapons, does that sound okay? We are
1:07:00going to talk about the people you
1:07:02managed to identify. We are going to
1:07:04talk about the vehicles, we are going
1:07:06to talk about the place, the
1:07:07circumstances, the characteristics. We
1:07:10make that transition; it is an aspect
1:07:13or a recommendation for the interviewer
1:07:16to be able to make those transitions
1:07:18from one topic to another, and
1:07:21obviously the court immediately
1:07:23perceives that the interviewer masters
1:07:26these litigation techniques, this form
1:07:29of direct examination of witnesses. The
1:07:34next aspect, once we analyze that the
1:07:37examination can be chronological or
1:07:39thematic, okay? Also, when we, uh, how
1:07:41are we going to define if the
1:07:43examination is thematic or
1:07:45chronological? In our own theory of the
1:07:49case, we will determine how to present
1:07:52the evidence. And there, in this theory
1:07:55of the case, we will determine if we
1:07:57are going to approach this witness
1:07:59moment by moment or this witness by
1:08:01relevant topics. relevant. That is also
1:08:05what developing the theory of the case
1:08:08is for, to be able to identify the way
1:08:10in which we are going to conduct the
1:08:12examination. What is the structure of
1:08:16the questions? The scheme used most
1:08:21habitually, which turns out to be more
1:08:24orderly and clarifying for the court,
1:08:28is the following. And here we speak of
1:08:32four four moments, right? Or four types
1:08:36of structure or schemes. First,
1:08:40introductory questions. Yes. Second,
1:08:45questions for qualification. Third,
1:08:51direct questions about the knowledge of
1:08:54the facts that the witness possesses.
1:08:58And fourth, the final questions. This,
1:09:03uh, can be, uh, the scheme used most
1:09:06habitually, right? Introductory
1:09:10questions, qualification, direct
1:09:12questions, and conclusions. Yes,
1:09:16introductory questions. This, obviously
1:09:19, this structure can vary, yes,
1:09:21depending on the case and the witness
1:09:24themselves, occasionally being able to
1:09:26intersperse, right, an introductory
1:09:29question with some qualification. In
1:09:32other words, this is really, remember
1:09:34that each one of you, as the person
1:09:37responsible for the presentation of
1:09:39these versions, has to develop the way
1:09:42in which the testimony is going to be
1:09:44presented. This is the habitual way.
1:09:47without implying that it cannot be, uh,
1:09:51varied, right? Or even mixing some of
1:09:54the stages. Yes? In that sense, the
1:10:00structure can vary; this structure of
1:10:03questions can vary and, in any case,
1:10:06questions of legitimacy should or can
1:10:08be interchanged with questions about
1:10:11knowledge of the facts. Aspects related
1:10:17to the witness's legitimacy could also
1:10:20be raised or left for a final phase of
1:10:23the examination. Each of us decides
1:10:28this from the point of view of our
1:10:31version or strategy for presenting the
1:10:34case. And it is also very important
1:10:38from the point of view of the Public
1:10:41Prosecutor and the Defense that we are
1:10:43clear about this structure of questions
1:10:46, because in practice, this denotes a
1:10:48lack of knowledge of a theory of the
1:10:50case or a lack of development of a
1:10:53theory of the case. When we do not
1:10:57follow an order in relation to the
1:10:59structure of the information, we wish
1:11:02for it to be provided by the witness.
1:11:06What is recommended is: I will speak
1:11:09chronologically, I will speak
1:11:11thematically, I will speak about
1:11:14accreditation of the fact, of the
1:11:17updating or accreditation of our legal
1:11:20component. Yes. And subsequently, I
1:11:23will speak about issues of
1:11:25responsibility. See how it allows us to
1:11:28identify and maintain an order in a
1:11:30structure of direct examination. In
1:11:33practice, it is very common to see that
1:11:35the participants are lost. One question
1:11:38is relative to legitimacy, another is
1:11:41relative to the accreditation of a
1:11:43factual component, and another is the
1:11:46accreditation of a legal component, and
1:11:48there really is no order regarding the
1:11:51information or the way in which it is
1:11:53being introduced to the bench. Yes.
1:11:57Therefore, it is important at least to
1:12:00be clear about this form of structure
1:12:03for the questions. It is recommended to
1:12:07start with these questions introductory
1:12:12ones. Generally, these introductory
1:12:15questions should not be more than two,
1:12:17two or three, maximum three, I believe.
1:12:23These introductory questions, as we had
1:12:26mentioned, have, uh, the purpose of
1:12:29generating trust in the witness. If we
1:12:35are talking about our own witnesses, it
1:12:38is important that we immediately manage
1:12:41to make our witness feel comfortable,
1:12:43that they feel secure. And for that,
1:12:49introductory questions are recommended,
1:12:52which are generally very specific. Yes,
1:12:56it is your first trial. Yes. How are
1:12:59you doing? Was what the court explained
1:13:03to you clear? Do you have any questions
1:13:06? If it is not clear to you, uh, you
1:13:10know how to answer the question. They
1:13:14are very simple topics. How did you
1:13:16wake up? How are you feeling? Are you
1:13:18calm? Here I have just mentioned
1:13:21approximately eight or nine
1:13:23introductory questions. What will these
1:13:25introductory questions allow us to do?
1:13:27To connect immediately with our witness
1:13:30. Yes. To connect the interrogator with
1:13:33the testimonial evidence. Yes. The fact
1:13:36that the witness says, well, he is
1:13:37concerned about how I feel. Yes, he is
1:13:39concerned about knowing if I understood
1:13:42the dynamic, asked if I needed anything
1:13:44, if I understood the judge's
1:13:46instructions. This immediately
1:13:50generates, yes, empathy, yes, a
1:13:52connection between the examiner and the
1:13:56witness. We must understand, and this
1:14:00in practice is very unfortunate when
1:14:02the examiner starts to fight with their
1:14:05own witness. Yes, because there was no
1:14:08prior interview, because there was no
1:14:10...and because there was no such
1:14:14preparation. Yes, these introductory
1:14:17questions, you see, are very simple: do
1:14:19you need anything? If you have any
1:14:21questions, or if you happen to feel ill
1:14:23during your statement, let me know.
1:14:27They aren't even strictly questions,
1:14:29but they are aspects that will allow us
1:14:31to connect with the witness. Remember
1:14:36that generally witnesses are unfamiliar
1:14:39with the trial, they arrive nervous,
1:14:41they arrive with uncertainty,
1:14:43especially when we talk about victims,
1:14:46right? Reliving moments that perhaps
1:14:52they already overcame, for which they
1:14:56underwent therapy or treatments, and to
1:15:00go back up on the stand to remember or
1:15:05relive what affected them at the time,
1:15:09well, obviously it could lead to a
1:15:13setback in that therapy or process.
1:15:17That therapeutic aspect. Yes? So, see
1:15:21the importance of explaining what is
1:15:23going to happen and generating that
1:15:26empathy, of controlling and
1:15:28transmitting security to that witness.
1:15:32So, these clarifying, or pardon,
1:15:34introductory questions that allow us to
1:15:38connect once we connect with our
1:15:40witness, they feel calm. This is the
1:15:43purpose, right? Final. The purpose of
1:15:47asking the introductory question is to
1:15:49make them feel comfortable, secure.
1:15:54Once we already have these introductory
1:15:57questions, generally two, maximum three
1:15:59I would consider, that is something you
1:16:01will ultimately determine. We move on
1:16:05to the legitimization questions. These
1:16:10legitimization questions, well,
1:16:13obviously imply, right?,they imply...
1:16:18what are the essential characteristics,
1:16:24right?,or how are we going to
1:16:26legitimize our witness. Yes. And in
1:16:31that sense, we speak of the fact that
1:16:36any citizen, any witness has a
1:16:39difficulty, yes, of receiving
1:16:44information or providing information.
1:16:49These legitimization questions are
1:16:51understood as those that are focused on
1:16:54personally validating the witness. And
1:17:00here it is also important because at
1:17:02the time we speak of a double
1:17:04legitimization: the legitimization of
1:17:07the witness as such, of the person, and
1:17:10the legitimization of the version. And
1:17:14this is very important because perhaps
1:17:17in practice we also confuse aspects of
1:17:19witness legitimization with aspects of
1:17:22the testimony. I am going to give you
1:17:26an example that could help us to, uh,
1:17:29clarify this particular point. Yes. The
1:17:36legitimization of the witness is who
1:17:38they are, why we should believe them.
1:17:42And this generally involves social
1:17:45models, right? Or social behavior. Who
1:17:49are they? What do they do for a living?
1:17:51What are their, uh, main activities? Uh
1:17:55, if they have had any problems, any
1:17:57conflicts, in short, everything related
1:18:00to the person and the legitimacy of the
1:18:03statement they are going to provide. On
1:18:07one occasion, uh, I must also share
1:18:10with you that before being a judge, I
1:18:13was a public prosecutor, and on one
1:18:16occasion as a prosecutor, I tried to
1:18:20discredit the person, not their
1:18:22statement, but the person as such. It
1:18:28was a witness who had a criminal record
1:18:31for committing a crime; I don't
1:18:33remember if it was, uh, drug-related
1:18:35crimes. Yes. And the questions I asked
1:18:40in a cross-examination, since it was a
1:18:44defense witness after all, the
1:18:47questions were focused on the issue of,
1:18:50uh, discrediting the person as such.
1:18:54Yes. And it is very important because
1:18:58there is a very fine line here that is
1:19:01often not handled well in relation to
1:19:04issues of, uh, relevance or irrelevance
1:19:07, which is another aspect we will see
1:19:10in two Fridays, the objections. This
1:19:15topic regarding whether or not the
1:19:18question is relevant to the fact. Yes,
1:19:21here I started cross-examining this
1:19:24witness regarding the existence of
1:19:27previous sentences for the commission
1:19:31of any crime. Yes, obviously the
1:19:34defense, through a mechanism which is
1:19:37the objection, tries to prevent the
1:19:40information from reaching the judge
1:19:44because the intention was to discredit
1:19:47the person as such, not the statement,
1:19:50the person. I mean, and this has to do
1:19:54with reasons for why to believe that
1:19:56witness. If they are an exemplary
1:19:59parent, if they are a member of society
1:20:02who belongs to an association, a
1:20:04community, well, ultimately it gives
1:20:07credibility to the person, regardless
1:20:10of whether an analysis of the
1:20:12credibility of the statement is made at
1:20:15the time. Yes, but for now we are
1:20:18talking about a, uh, credible person,
1:20:21yes? That can provide credibility, yes?
1:20:25That was the intention of attacking
1:20:28this witness regarding the discrediting
1:20:31of the person as a mechanism to prevent
1:20:34this information from reaching the
1:20:37court. The defense begins to make
1:20:40objections on the basis of irrelevance,
1:20:43that is, that the question had no
1:20:45relation to the fact that is the
1:20:48subject of the hearing. And here, well,
1:20:52indeed it had no relation whatsoever.
1:20:54It was a crime of abduction of minors.
1:21:00And, obviously, when the judge grants
1:21:02me the opportunity to address the
1:21:04objection, I clarify to the judge that
1:21:07there are two aspects or areas we can
1:21:09attack: the legitimacy of the witness
1:21:11and the legitimacy of their statement.
1:21:16And that, even if the questions were
1:21:19not directed toward or relevant to the
1:21:21facts, they were intended to discredit
1:21:24the witness. However, I made this
1:21:29clarification, and the judge decided to
1:21:32sustain the objections because they
1:21:35were unrelated to the facts. Right? So,
1:21:38these are two totally different aspects
1:21:40, aren't they? The legitimacy of the
1:21:43witness and the legitimacy of the
1:21:45source of evidence. In that sense,
1:21:49these questions of legitimacy are meant
1:21:52to validate the witness personally.
1:21:57Once we have managed to get the witness
1:22:01to speak, to feel comfortable with
1:22:04these introductory questions, and to
1:22:07generate or convey that confidence—
1:22:10even as a strategy of saying," Look, I
1:22:13am going to ask you these questions. ""
1:22:17If you have any doubts, please let me
1:22:19know. "" Uh, later you will be
1:22:21questioned by the opposing party. "Yes,
1:22:24we generate that empathy. Once we
1:22:27manage to make the witness feel
1:22:30comfortable, it becomes necessary to
1:22:32legitimize them. With the goal that the
1:22:37content of their account is acceptable
1:22:41and credible to the court. Ultimately,
1:22:46that is our main objective: that the
1:22:48information this witness provides is
1:22:50useful for the court. With this
1:22:56objective in mind, we must direct
1:22:59questions that allow us to reach a
1:23:02general knowledge of the witness, which
1:23:05leads us to topics such as profession
1:23:08or trade. Tell the court what you do
1:23:13for a living. How many years have you
1:23:17been in the same job? What other jobs
1:23:21have you held? Have you held any
1:23:25position of responsibility? What was
1:23:28that position of responsibility? How
1:23:31did you end that position of
1:23:33responsibility? Do you participate in
1:23:37any charity or nonprofit activities?
1:23:40Yes. Topics relating to family, family
1:23:43activities, or social activities. For
1:23:48example, in the case of public servants
1:23:50, we will speak specifically about
1:23:53police officers as first responders or
1:23:55as investigative police. We are going
1:23:58to legitimize them, right? What do you
1:24:01do today as an investigative agent, how
1:24:04long have you been working, in which
1:24:07units have you performed duties, have
1:24:10you received training, what is your
1:24:12level of education, have you taken any
1:24:15courses? Do you have any postgraduate
1:24:18degrees? Do you have any
1:24:20specializations? Have you attended any
1:24:22seminars? Uh, what have been your
1:24:24activities, what are your functions,
1:24:26etcetera, right? We are, uh, we are
1:24:29building that credibility in relation
1:24:32to our witness, right? Other topics
1:24:38also need to be explored regarding
1:24:41validation, related to how close or
1:24:44distant they are to any of the
1:24:47participants, right?,in the trial. Do
1:24:52you have any relationship with the
1:24:55victim, with the accused? Is there any
1:24:57bond? Anyway, no. to manage to generate
1:25:02this. Notice that in practice, from the
1:25:07point of view of the defense, or rather
1:25:10the Public Prosecutor's Office, the
1:25:13attempt is to discredit defense
1:25:16witnesses on the basis of a family tie.
1:25:22But it is very important to establish
1:25:25that in certain crimes, and due to the
1:25:27nature of their execution, the people
1:25:29who have knowledge are the ones closest
1:25:32to the accused, and for that reason
1:25:34alone, it would not be enough to
1:25:36undermine their credibility, right? As
1:25:41is often argued, well, the witness has
1:25:43an interest in testifying in that way
1:25:46to benefit the accused. Obviously, we
1:25:51know there are no such
1:25:52disqualifications in criminal matters,
1:25:53therefore, we must analyze the
1:25:55reasonableness of their statement. Yes?
1:25:59So we go through these stages or these
1:26:02transitions: introductory questions,
1:26:05validation questions, and direct
1:26:07questions regarding the facts. And once
1:26:13we have managed to accredit our witness
1:26:16, now we are going to go straight to
1:26:19the subject matter. Yes, validation
1:26:24questions will also help us to
1:26:27anticipate any weakness, specifically
1:26:31when the information to be revealed,
1:26:35due to its level of publicity or
1:26:39difficulty, has a high chance of being
1:26:43known and used by the counterparty. Yes
1:26:48, that is what I was telling you. It
1:26:51also allows our theory of the case to
1:26:54identify if the counterparty has
1:26:56already clearly identified our
1:26:58weaknesses. In that sense, these
1:27:02validation questions will also allow us
1:27:04to anticipate. Yes? And we move on to
1:27:10direct questions regarding the facts,
1:27:14right? Finally, these questions go
1:27:18straight to the subject matter, right?
1:27:21Thank you very much. Agent Solis, you
1:27:23have already explained your
1:27:25professional background, your years of
1:27:27service, your courses, and training.
1:27:31Now we are going to talk about the
1:27:33event in particular. Tell the court the
1:27:36reasons why you were called to the
1:27:38trial. Yes, I was called to the trial
1:27:42taking into consideration that I had an
1:27:45intervention as an investigative agent.
1:27:49I was informed via radio operator of
1:27:51the presence of armed individuals at
1:27:54such an address, for which I arrived
1:27:57and was able to notice this, right? So,
1:28:01now direct questions to the facts, yes?
1:28:07And obviously these questions in a
1:28:10direct examination are obviously
1:28:12open-ended, narrative, or closed
1:28:15questions. It is also very important to
1:28:20handle this way of questioning, right?
1:28:23This structure of the interrogation.
1:28:27Open-ended questions, tell the court
1:28:29what happened, explain what you just
1:28:31indicated to us, or tell me if—and it
1:28:34is also very important not to confuse,
1:28:37and we will see this in other sessions,
1:28:39what closed questions and suggestive
1:28:42questions are. In practice, I also
1:28:46think there is a lot of confusion about
1:28:48what constitutes a closed question
1:28:50versus a suggestive question. Yes, a
1:28:53closed question is one that is phrased
1:28:56in terms that allow for an affirmative
1:28:59or negative response. Yes, it was
1:29:03afternoon; that is not a suggestive
1:29:05question, it is a closed question that
1:29:07allows for a yes or no answer. And
1:29:12there is a lot of confusion. The
1:29:14structure of a direct examination is
1:29:17through open-ended, narrative, and
1:29:19closed questions, which we will see in
1:29:22the next session. Cross-examination,
1:29:25right? Unlike this examination, I see
1:29:29that the techniques are not well
1:29:31mastered, and in a cross-examination,
1:29:34only open-ended questions are asked,
1:29:37with the risks that entails, right?
1:29:40Which we will see in the next session.
1:29:45Therefore, in a direct examination,
1:29:48open-ended questions, narrative
1:29:50questions, and closed questions are
1:29:53intended to allow the witness to
1:29:56provide the information they possess
1:29:59regarding the facts of the case. Yes.
1:30:04Once the witness has been legitimized
1:30:08through this series of questions, which
1:30:12generally involves, depending on the
1:30:15witness's experience, about 10 to 15
1:30:18legitimizing questions, right? What do
1:30:23you do for a living? Where do you work?
1:30:24How long have you been there? What have
1:30:26your duties been? Positions of
1:30:30responsibility, what are your courses,
1:30:33training, level of education, how many
1:30:37interventions have you had, police
1:30:40reports you have produced, etcetera,
1:30:43right? 12 to 15 questions, 18 questions
1:30:49depending on the capacity of the
1:30:51evidentiary source. Once we have them
1:30:55legitimized, now we have the reason to
1:30:58tell the court, this person is credible
1:31:00on the basis that they are going to
1:31:03come and testify based on the
1:31:05experience or profile they have. Once
1:31:09this information is extracted, then we
1:31:12go straight to the topics they possess.
1:31:17What are these questions? Uh, Mr.
1:31:20Pérez or Officer Pérez, can you tell
1:31:22the court the reasons for which you
1:31:23were called to the trial? Could you
1:31:27tell the court what you were able to
1:31:31observe on the day of the events? Could
1:31:35you tell the court what you know
1:31:37regarding the facts? Do you know why
1:31:40you were called to trial, could you
1:31:42explain to the court? And this is where
1:31:44it also has to do with the
1:31:46interrogator's skill. I mentioned a
1:31:49moment ago that there are witnesses who
1:31:51are capable of structuring a whole
1:31:53story, but there are others who aren't
1:31:56able to string more than two words
1:31:58together. And here we have to develop a
1:32:01different, uh, interrogation, right?
1:32:05Through closed-ended questions to guide
1:32:08that witness, because those witnesses
1:32:10aren't able to string more than two or
1:32:12three words together, and ultimately
1:32:14it's more difficult, it represents a
1:32:16weakness because we have to guide them.
1:32:19Well, you already indicated it was. Uh,
1:32:23can you give us the month, right?
1:32:25December. Of what year? '23. What
1:32:29happened? Uh, a robbery. Let's see, can
1:32:33you explain to us how it happened? Yes,
1:32:35well, we were at such a place and such
1:32:38people arrived. And what happened? So,
1:32:41we have to structure those questions to
1:32:44guide our witness to the information we
1:32:47want. And this type of question is
1:32:51precisely what invites our witness to
1:32:54provide a, yes, extended account of the
1:32:58information they possess. There will be
1:33:04those who are very skilled at
1:33:06presenting it, and others not so much,
1:33:09and therefore they are possible and
1:33:12useful to the extent that the witness
1:33:15has that ability to give a clear and
1:33:18logical account. And well, we also
1:33:26change, right? Well, topics. You
1:33:28already told us about the robbery,
1:33:30let's talk about the defendant. Tell us
1:33:33, do you know the defendant? Why do you
1:33:36know him, how long have you known him,
1:33:38what do you know about him, what did
1:33:40you observe that day? Who was present
1:33:43that day? Was anyone else there? Uh,
1:33:46you mentioned this particular situation
1:33:48, can you clarify it for us, anyway,
1:33:51right? What did the defendant do at
1:33:53that moment? What was it that you did?
1:33:55What did you observe? Who arrived? What
1:33:57happened? We are guiding our witness
1:34:01regarding the information. And this is
1:34:07when we talk about, uh, the
1:34:09interrogator's ability to delicately
1:34:12interrupt the witness's account to
1:34:15request clarification or highlight a
1:34:18central aspect of the version the
1:34:20witness is presenting to us, for which
1:34:23closed-ended questions are used to
1:34:26formalize the statement. For example,
1:34:32you just pointed out to us before I
1:34:35interrupted you that, on the day of the
1:34:38events, you had seen the defendant at
1:34:41your neighbor's house. Were you able to
1:34:45observe what the defendant was doing?
1:34:49Notice how these ways of interrupting
1:34:53delicately will allow us to redirect
1:34:57closed questions to, uh, focus on
1:35:00certain information that proves
1:35:04relevant to the court. This is a method
1:35:09of, uh, interrupting delicately.
1:35:12Another possible method is to let the
1:35:16witness finish their version, answer
1:35:20all the questions, and then request
1:35:24clarifications on those parts that seem
1:35:29insufficiently addressed in their
1:35:32account or that we would like to make
1:35:38uh, manifest or highlight certain
1:35:41aspects. Yes. Those are the two ways we
1:35:45have to either interrupt delicately or
1:35:48allow them to finish their, uh, version
1:35:50and try to formulate clarifications.
1:35:55That also has to do with the capacity
1:35:56of the witness. We are going to
1:35:58identify. Is this witness capable, if I
1:36:00interrupt them, of continuing with
1:36:02their version? Or this witness, if I
1:36:05interrupt them, perhaps I might, uh,
1:36:08break their concentration and prevent
1:36:11them from providing useful information.
1:36:15That also has to do with a prior
1:36:18selection, uh, of the witness. And
1:36:23finally, well, let's talk about the
1:36:25final questions, yes? To round off the
1:36:29examination and finish with a positive
1:36:32impression for the court. Yes, it is
1:36:37important. And this as well: there are
1:36:40some recommendations, uh, regarding the
1:36:42way of questioning. If we start with
1:36:45quality information, we close with
1:36:47quality information. Uh, depending on
1:36:50whether, if I start with quality
1:36:52information, perhaps, uh, the very end
1:36:55won't be as compelling, because the
1:36:57last version the court might have in
1:36:59mind is the final questions asked of
1:37:01them. Anyway, either I start with
1:37:05relevant information in the examination
1:37:08, the middle of the examination with
1:37:10information that isn't as, uh, decisive
1:37:13, and I finish with, uh, compelling
1:37:15information. Ultimately, that is also a
1:37:19strategy, but these final questions
1:37:21will allow us to round off the
1:37:23examination and finish with that
1:37:25positive impression. A good direct
1:37:29examination concludes with a set of
1:37:32questions whose answers are relevant to
1:37:35our theory of the case. This means
1:37:40leaving a good impression and leaving
1:37:43the witness confident to face the
1:37:45cross-examination. This is the most
1:37:48important thing. Uh, remember that upon
1:37:50concluding our direct examination, they
1:37:52will be subject to a cross-examination.
1:37:55So, we must leave the witness, yes,
1:37:58ready, confident, to take charge of
1:38:01that cross-examination. And therefore,
1:38:06this set of questions also serves to
1:38:10highlight relevant aspects of our
1:38:13theory of the case. Very well. What
1:38:16could you tell us then, in summary, uh,
1:38:20of what it was you observed? Uh, we can
1:38:24affirm this situation. Anyway, under
1:38:28these ideas of primacy and relevance,
1:38:32we must always start and continue or
1:38:35finish our examination by focusing on
1:38:39the central factual propositions of our
1:38:43case. Yes? What would these final
1:38:48strategic recommendations be? well, use
1:38:51the transition formulas we already
1:38:53discussed. These techniques are called
1:38:56hit and run, right? That is, I address
1:38:59a topic and then leave it. But it is
1:39:02important to use these transition
1:39:04formulas as it is. Very well, we've
1:39:07discussed this particular topic, let's
1:39:09change the subject, shall we? Right, we
1:39:12have spoken about the people, now let's
1:39:14talk about the vehicles. Yes. Anyway.
1:39:17And well, finally, I think we are about
1:39:20to conclude, uh, and remember something
1:39:22very important. We must remember that
1:39:25the protagonist is the witness, not the
1:39:29examiner. The witness is the main actor
1:39:34in the trial, and therefore, a good
1:39:38lawyer should go as unnoticed as
1:39:41possible. The one who should have all
1:39:46the spotlight, all the attention, is
1:39:48the witness, not the lawyer. Therefore,
1:39:52as a lawyer, you have to try to go as
1:39:54unnoticed as possible. With this, I
1:39:58think we cover the topic of direct
1:40:01examination, some general aspects,
1:40:03precisely to make room for some, uh,
1:40:05questions.
1:40:07>> Doctor Pérez,
1:40:10>> thank you very much, uh, Doctor
1:40:12Márquez. And yes, indeed, we move on
1:40:16to the Q&A session, uh, so I will take
1:40:17the liberty of reading some of the ones
1:40:20that have been sent to the chat. And
1:40:23look, the first one would be the
1:40:24following. Is the theory of the case
1:40:28unique or can it be modified depending
1:40:30on the stage we are in, particularly
1:40:33for the defense?
1:40:37>> It is very important that this theory
1:40:40of the case be under constant review
1:40:42and feedback, so it cannot be unique.
1:40:46we can modify it. As we mentioned, as
1:40:49we are providing feedback, it is very
1:40:52important from the defense's point of
1:40:54view; if I begin to carry out my
1:40:56complementary investigation, my theory
1:40:59of the case that I considered at one
1:41:01moment may vary substantially. I mean,
1:41:05that is not just a characteristic, it
1:41:08is even a recommendation to be
1:41:10constantly reviewing our theory, and it
1:41:13may vary according to the information
1:41:16we are gathering.
1:41:19>> Very well, Doctor, thank you very much.
1:41:21Uh, I will take the liberty of reading
1:41:23the next question to you. In your
1:41:25opinion, does defense strategy mean the
1:41:27same thing as the defense's theory of
1:41:29the case? Well, in general terms, we
1:41:33can point out that it is the same
1:41:36terminology, a strategy or a theory.
1:41:38The theory of the case is the strategy
1:41:40with which I am going to present my
1:41:42trial. So, finally, well, uh, we
1:41:44consider that it could be the same
1:41:46thing.
1:41:48>> Very well. Uh, I'll read the next one,
1:41:50Doctor. What are the criteria you use
1:41:54to decide which facts should be
1:41:55established through the direct
1:41:57examination of a witness or an expert?
1:42:00And which ones is it better to prove
1:42:02through other means of evidence without
1:42:04losing coherence with the theory of the
1:42:06case? When we develop our theory of the
1:42:11case, we will identify which particular
1:42:14evidence works for each of my factual
1:42:16propositions. And that is where we can
1:42:20establish that this expert serves to
1:42:22prove this issue, especially technical
1:42:25aspects. This expert is going to prove
1:42:29a technical aspect, uh, criminology,
1:42:32forensic medicine, forensic psychology,
1:42:37and the witness will serve me for
1:42:39another version. Even, what other
1:42:42evidence? Here we can use several,
1:42:44right? It does not mean that only one
1:42:46witness works for one proposition. We
1:42:49can have a witness, an expert, a
1:42:52document, and another means to help me
1:42:55prove a factual proposition. This has
1:42:58to do specifically with the analysis
1:43:00and construction of my theory of the
1:43:02case. For example, what helps me prove,
1:43:05uh, the deprivation of a person's life?
1:43:07Well, there is the eyewitness who
1:43:09observed when the weapon was fired. We
1:43:12have the medical examiner who will let
1:43:15us know, uh, the cause of death, and we
1:43:18have the, uh, medical report, or also,
1:43:21for example, the standardized police
1:43:24report where they determine the
1:43:26circumstances. So each factual
1:43:30proposition can be proven with a single
1:43:32piece of evidence or reinforced with
1:43:34several. That depends on the version
1:43:38and, in particular, what we are going
1:43:41to prove. So, it is not a specific rule
1:43:43. We can play with several pieces of
1:43:46evidence that indicate what is useful
1:43:48to us in particular to demonstrate that
1:43:50particular fact or that factual
1:43:52proposition. Well, Doctor, I will move
1:43:56on to the next one. At what point does
1:43:59an objection stop being a legal tool
1:44:01and become a strategic issue that can
1:44:04even affect the judge's perception of
1:44:07the litigator?
1:44:10>> That is very important and we will
1:44:12address it in two weeks. The objection
1:44:15is, as mentioned, a strategy. Even when
1:44:21the objection is not made according to
1:44:23the rules of litigation, if my strategy
1:44:26is for the information not to reach the
1:44:29court, I can use it as such. The
1:44:33problem is when this mechanism is
1:44:36abused to, uh, carry out the principle
1:44:40of contradiction. That is when the
1:44:43court may end up sanctioning or calling
1:44:46out the participant because they are
1:44:52not allowing the information to flow.
1:44:57That is to say, objections can be made
1:44:59as a strategy to prevent information
1:45:01from arriving, but not as a mechanism
1:45:03to stop information from flowing. Yes.
1:45:08Very well, Doctor. The next one,
1:45:10>> we will address this in the topic in
1:45:12two weeks, so I will not go into much
1:45:13detail, but it is basically that.
1:45:17Finally, it is a strategy that we can
1:45:20use as long as it is not overused,
1:45:22causing the court to issue a warning or
1:45:25a coercive measure for abusing that
1:45:28mechanism.
1:45:32>> Very well, thank you, Doctor. The next
1:45:35one says: Article 374 of the National
1:45:37Code of Criminal Procedures establishes
1:45:39that the jurisdictional body may ask
1:45:42questions to clarify what has been
1:45:44stated by the person testifying, under
1:45:46the terms provided by this code. But
1:45:51when the judge begins to ask questions
1:45:53so that a witness offered by either
1:45:55party clarifies or perfects the
1:45:57information provided, can they be
1:45:59objected to? Can they be interrupted?
1:46:06>> That is a very important question.
1:46:08Ultimately, we were saying that we are
1:46:11in a scenario of a dispute between two
1:46:15positions. It seems to me that as
1:46:19judges, we must remain on the sidelines
1:46:21to precisely avoid the court becoming a
1:46:24substitute for the deficiencies of one
1:46:27party or the other. That is to say, as
1:46:32a technical body and as an
1:46:34interrogating lawyer, whether
1:46:36Prosecutor or Defense, you must possess
1:46:39these interrogation skills so that,
1:46:42through this direct or
1:46:43cross-examination, quality information
1:46:46emerges to support your version. I
1:46:50believe that the moment a judge
1:46:52substitutes or begins to question, they
1:46:55may be substituting for one of the
1:46:57parties, and there is no impediment, it
1:46:59seems to me, for the counterparty to
1:47:02argue on that basis, saying," This
1:47:04question does not constitute a
1:47:06clarification, it is substituting for a
1:47:08deficiency, and therefore the body
1:47:11should not allow the witness to answer.
1:47:13"That also has a lot to do with
1:47:15strategy. In the 17 years I served as a
1:47:19judge, I practically never asked a
1:47:21clarifying question—never—because
1:47:24it seems to me that the contest should
1:47:26be left to the participants, because we
1:47:29could run into this issue, right? At
1:47:33what moment or to what extent can a
1:47:35question be clarifying, and to what
1:47:37extent are we perfecting a weakness of
1:47:40one of the parties? It is a very thin
1:47:44line, and I would consider keeping the
1:47:47jurisdictional body apart from these
1:47:50questions.
1:47:53>> Very well, Doctor. And I think we have
1:47:56time for one last question.
1:47:58>> Go ahead.
1:47:59>> It says," What happens if the witness,
1:48:01at the end of the interrogation, asks
1:48:03to speak with the judge because they
1:48:06feel uncomfortable with the questions,
1:48:08feeling pressured? "Since whoever
1:48:10prepared them for said interrogation
1:48:13told them that nothing and no one would
1:48:15pressure them or force them to answer.
1:48:20Well, I think that is, as we were
1:48:22commenting, an interview that the
1:48:24interviewer must conduct beforehand,
1:48:27right? A prior session. And it is very
1:48:31important, look, regarding the
1:48:33recommendations I made for the
1:48:35interviewer, it is to explain the
1:48:37dynamic. Obviously, you cannot tell a
1:48:41witness that they will not be subject
1:48:43to a cross-examination in which,
1:48:45clearly, the cross-examiner has a
1:48:48specific purpose. The purpose of the
1:48:52cross-examiner is to weaken the version
1:48:54they provided. Therefore, I do not
1:48:58believe we should ever tell a witness
1:49:00that they will not go through this
1:49:02process, but rather prepare them by
1:49:05saying," You are going to undergo a
1:49:07cross-examination in which you will be
1:49:09directly attacked. "Obviously, there is
1:49:13also a tool called an objection for
1:49:16when that limit is crossed and when the
1:49:19question or the interrogator's way of
1:49:22intervening is no longer questioning,
1:49:25but pressure. There is a mechanism
1:49:30called an objection when the witness is
1:49:33being, uh, harassed to testify in one
1:49:37way or another. Yes. So, I think we
1:49:40have to address both aspects there.
1:49:43First, prepare the witness for the fact
1:49:46that they will obviously be coerced by
1:49:48the opposing party to diminish their
1:49:50credibility, and second, use the
1:49:52objection mechanism when this limit is
1:49:54exceeded. Look, this is very important.
1:49:57I, uh, I will give a very simple
1:49:59example. When the witness has already
1:50:03answered, but it is not the answer the
1:50:05counterpart or cross-examiner expected,
1:50:08and they are coerced to change their
1:50:10answer. That can be a mechanism of
1:50:13coercion." Listen, you said it was red,
1:50:15"however, that can be a mechanism of
1:50:18pressure to say, wait, the witness
1:50:19already answered. Yes, it is not the
1:50:22response the counterpart expected, but
1:50:24ultimately, they already answered the
1:50:26question. So, there we also have a
1:50:29mechanism for protection. Remember that
1:50:33these are our own witnesses when we
1:50:35speak of direct examination, and we
1:50:37also have mechanisms to protect our
1:50:39witness from these types of coercion or
1:50:41threats. Thank you very much, Doctor.
1:50:46We are going to allow ourselves to add
1:50:48one more, Doctor, because you are
1:50:52>> uh shedding so much light with your
1:50:54knowledge, and the next question says:
1:50:56Were any of the interrogation
1:50:58techniques not regulated within the
1:51:00procedural code? However, they were
1:51:05introduced as their operability was
1:51:07implemented. Could you comment on how
1:51:11that transition went and, more
1:51:12importantly, how and on what they were
1:51:14based to allow their application during
1:51:16the development of trials? Well, I
1:51:20think the rules have always been clear,
1:51:22right? We are talking here about a fair
1:51:25game and, and I always use this example
1:51:27, right? A trial is a contest, and we
1:51:30can take this contest to any field, uh,
1:51:33in the sports arena. We have a soccer
1:51:38match, we have two opponents, and there
1:51:41is a referee whose job is to ensure the
1:51:45game is played according to certain
1:51:48rules. You can do all of this, but you
1:51:53commit a foul if, uh, you are in an
1:51:56offside position. Yes, in relation to,
1:52:01uh, the counterpart. The same happens
1:52:04in a trial. The rules have always been
1:52:06clear. Yes. Specific rules have been
1:52:09developed for questioning. In a direct
1:52:12examination, you, uh, cannot ask
1:52:15leading questions. These rules have
1:52:18always been established in the National
1:52:20Code. The issue is developing the skill
1:52:25to prevent these rules from not being
1:52:29followed. And that is ultimately what a
1:52:34judge does, respect or verify that
1:52:36litigation rules are respected. Yes.
1:52:39And that is through horizontal control,
1:52:42which are the objections. Obviously,
1:52:45how have they, how have they developed
1:52:47over time? They have always been
1:52:49established. There is, specifically,
1:52:51the National Code establishes which
1:52:53questions are not allowed. All you have
1:52:56to do as a judge is apply those rules.
1:52:58And here comes a very interesting
1:53:01question: to what extent can the judge,
1:53:04uh, enforce those rules when the
1:53:07counterpart is negligent? Yes, I also
1:53:10think it is a very fine line. If the
1:53:14counterpart, who would be in charge of
1:53:16preventing information from being
1:53:17incorporated if it is not properly done
1:53:19, to what extent can the judge
1:53:21intervene and say," While it is true
1:53:23the Public Prosecutor or the defense
1:53:25attorney is not making objections, I am
1:53:27not going to allow it because it does
1:53:28not comply with these rules "? Yes,
1:53:32because that can also affect other
1:53:34issues, such as declaring a defense
1:53:37abandoned when we notice that they lack
1:53:39the capacity to comply with this rule,
1:53:42right? Those are other, other topics,
1:53:45but it seems to me, regarding the
1:53:47question, that the rules have always
1:53:48been established. The way to enhance
1:53:51them is to know the rules of this
1:53:54litigation and carry out the mechanisms
1:53:57to prevent information from being
1:53:59incorporated by a person who is not the
1:54:02witness. Yes.
1:54:05>> Very well. Thank you very much, Doctor.
1:54:08Uh, it is no less important to inform
1:54:10you that there are several expressions
1:54:12of gratitude in the chat, uh, for your
1:54:14presentation. In this sense, this house
1:54:19of legal knowledge of the Supreme Court
1:54:21of Justice of the Nation joins in that
1:54:24gratitude for sharing with us knowledge
1:54:26that makes us reflect on direct
1:54:28examination, witnesses, and experts,
1:54:31which is much more than a litigation
1:54:33technique. Because it is important to
1:54:38understand that this is the moment when
1:54:40the facts find their voice within a
1:54:43criminal proceeding; because, through
1:54:45clear, respectful, and methodologically
1:54:47rigorous questioning, witnesses can
1:54:49provide information that is relevant—
1:54:51it is key; and, through the examination
1:54:53of experts, one can also explain the
1:54:55specialized knowledge that will help
1:54:57the judge understand the case.
1:55:02Therefore, building a solid theory of
1:55:04the case will imply preparing each
1:55:06question responsibly, acting ethically,
1:55:09and preserving at all times the dignity
1:55:11of the people involved. And this is
1:55:15only achieved when one has good
1:55:16technique. Uh, that is how it will be
1:55:19strengthened through legal
1:55:21argumentation. And all of this is
1:55:24important so that those legal decisions
1:55:27are always made or carried out with
1:55:29clarity, objectivity, and a full sense
1:55:31of justice, right? And well, thank you
1:55:35very much, Doctor. With that, we deeply
1:55:38thank you for your participation, and
1:55:40to the audience, to those listening to
1:55:43us through digital media and social
1:55:45networks who have already registered
1:55:47for this course, we invite you to tune
1:55:49in for session two, which will cover
1:55:51cross-examination and the treatment of
1:55:53hostile witnesses. And this
1:55:57presentation by Dr. Ricardo Márquez
1:56:00will take place on Friday, October 9th.
1:56:03For which we hope to have your valuable
1:56:05attendance. Thank you very much, Doctor
1:56:07, and thank you all. We are not saying
1:56:09goodbye; we will see you next week.
1:56:11Take care. See you later.
1:56:13>> If you allow me to close with something
1:56:15very brief in
1:56:16>> Of course, go ahead.
1:56:17>> Regarding this last intervention, the
1:56:20importance of relying on specialists in
1:56:23other fields. For many years, the judge
1:56:26was considered an expert of experts, a
1:56:29position we can no longer maintain
1:56:31today. The judge must be an expert in
1:56:34law exclusively, not an expert of
1:56:36experts. And for this, they require the
1:56:40knowledge of specialized areas,
1:56:42medicine, architecture, engineering, in
1:56:45such a way that the experts, through
1:56:48this direct examination, will become
1:56:51auxiliaries to the judge to understand
1:56:54a circumstance or a subject matter that
1:56:57is foreign to the judge. And this trend
1:57:01, it seems to me, is already well
1:57:03surpassed in the sense that the judge
1:57:06is no longer the expert of experts, but
1:57:08necessarily requires the information of
1:57:10specialists through the experts—which
1:57:13is the quality granted to them—who
1:57:15will provide information regarding a
1:57:17particular matter so that the judge has
1:57:20greater clarity regarding topics they
1:57:22are unfamiliar with. Thank you very
1:57:28much, Dr. Márquez. We deeply
1:57:30appreciate your valuable participation.
1:57:32See you next week. Take care.
1:57:36>> Thank you very much. Have a great week
1:57:38and see you next Friday.
1:57:41>> Goodbye. Later.
1:57:47>> we conclude the live broadcast.

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