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Teoría de la prueba penal y sistema de garantías | Alberto Binder — Transcript

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0:02Friends and followers, today is one of
0:06those memorable days that life offers
0:09us, especially academic life. We began
0:14weaving it together at dawn on July 23,
0:19when we decided to bring together old
0:22and new experiences from a journey that
0:26began in 2002, which after taking a
0:30shore to rest, now continues its
0:33journey. It is accompanied by friends
0:38known and unknown, and by words loaded
0:41with history and presence that seek
0:44precision in speech, as well as
0:47vocabulary invented by technology to
0:51address that network of images, content
0:54, and information that are transformed
0:58into knowledge. As the first activity
1:03of Judec, the Center for Legal Study
1:06and Development, we have organized a
1:08series of free conferences. For more
1:12than 4 months, over two weeks, 30
1:15professors from 12 Latin American
1:18countries will be offering us their
1:21knowledge in the center's three main
1:24areas of interest: Criminal and
1:26Criminological Sciences, Human Rights,
1:30and the Rule of Law. At the beginning,
1:34I would like to ask your permission to
1:37pay a heartfelt tribute to Julio Elías
1:40Mayaudón. On June 11 of this year,
1:44friendship suffered a severe blow. That
1:48day, Julio Elías passed away in San
1:52Fernando de Apure, Venezuela. I wish to
1:56remember him with words that fate
1:59allowed me to say and for him to hear
2:03in his alma mater, the University of
2:06Carabogo, a few years ago, which I
2:09promise to continue keeping alive. I
2:13said the following on that occasion.
2:17Beginning with the journey from the
2:19dawn of his flat land to the banks of
2:22the Cabriales, with his time in the
2:25Rome of Benigno Ditulio, Julio Elías
2:28Mayaudón's academic inventory is
2:31written with transcendent words. Who
2:34can deny his generosity, solidarity,
2:36and support so that others could
2:38showcase their best achievements? Who
2:41can ignore that he was an actor on his
2:44university and parliamentary stage who
2:47left an indelible mark on our
2:49procedural system of those years? Who
2:53can say that he did not write his most
2:56recent work, Judicial Debate in
2:58Criminal Proceedings, from his very
3:01personal readings with imagination and
3:03knowledge of reality and forensic
3:06practice? Friends, the first conference
3:13, as you all know, is titled Theory of
3:17Criminal Evidence and the System of
3:20Guarantees. Its speaker is Alberto
3:24Martín Binder, who has always
3:29accompanied and supported us as we
3:29continue on this journey. A generous,
3:32simple, and frank man who has made
3:36friendship one of his main works.
3:40Alberto, your presence now in this
3:43virtual room brings me pleasure to
3:45advance some words that I wrote in
3:48recognition of your legal work, which
3:51together with that of other friends
3:54will be published in Bogotá before the
3:57end of the year. Today I want to tell
4:01you the following: the works Criminal
4:05Justice and the Rule of Law,
4:07Introduction to Criminal Procedural Law
4:11, Criminal Policy from Formulation to
4:15Practice, Material Ideas for Criminal
4:18Justice Reform, Introduction to
4:21Criminal Law and Criminal Policy
4:24Analysis, Methodological Bases for a
4:27Minimalist and Democratic Criminal
4:30Policy. These are vigorous steps in the
4:33creative activity of Alberto Binder,
4:36committed to delving into the role that
4:39law plays in the life of a society.
4:43Upon my return from his readings, I can
4:46say with the help of Jorge Luis Borges,
4:49a fellow countryman of the author, that
4:52they have not aged, they could have
4:55been written this morning. Now, Alberto
4:59, I give you the floor because there is
5:02an audience waiting for you as always.
5:05Welcome.
5:07Thank you, Argenis. Good afternoon,
5:10everyone. It is a great pleasure for me
5:13to be able to participate in this
5:16series of conferences, to once again be
5:19closely linked to the activities of
5:21Judec and Argenis and their entire team
5:24, with whom we have done so many
5:27activities in other times. I join you
5:31in this warm and unforgettable speech
5:37by Julio Elías, with whom we have also
5:40participated in many debates with the
5:42entire team, who at some point
5:45envisioned a new criminal justice
5:47system for Latin America. So, it is
5:51also an afternoon of pure pleasure and
5:55it is a pleasure to be with you as well
5:58, sharing theoretical topics because we
6:02can do many things, but at the end of
6:06the day, we are theorists, academics,
6:09and we like to share and discuss ideas.
6:14Today, we begin with a conference that
6:19I am going to give, a presentation that
6:22has to do with a topic that you will
6:24know is very current. I will try to
6:27give a presentation of about 30 to 40
6:30minutes that will allow me to develop
6:32the topic, and then we will open the
6:35door to questions. I say that it is
6:38current because in the development of
6:41the complex process of reform
6:43throughout our region, today with new
6:46vigor we are facing evidentiary
6:49problems, which is a historical topic,
6:51a topic that has concerned anyone who
6:54is dedicated to criminal procedural law
6:57for centuries. I have to make some
7:01methodological clarifications before
7:03going into the system, the specific
7:05problem of the theory of evidence. Note
7:08that the title is Theory of Criminal
7:10Evidence and the System of Guarantees.
7:13And this is very important because we
7:15are going to look at the evidentiary
7:17problem from the perspective of the
7:19system of guarantees. The system of
7:22guarantees is the set of limits that we
7:26have developed. All of us, but since
7:30the development of liberal criminal law
7:32, since that wonderful pamphlet that
7:35was Deid Delit by LPN de Becaría,
7:38until today, continue to develop to try
7:41to contain the abuses of punitive power
7:44. Many in the past, many in the present
7:48, always a threat to the future of
7:51public freedoms. And therefore, the
7:55system of guarantees, a
7:57post-Ferrayolian terminology because we
8:00owe it to Ferrayoli that we are using
8:03the idea of systems, will tell us that
8:07all those limits that we have built
8:10throughout these two centuries,
8:12basically, many more, if we take a
8:15longer view, can be seen, or should be
8:18seen, as a system; that is, not as a
8:22separate set of limiting principles,
8:26but as an articulation of principles
8:30and tools that all interact. And that
8:35interaction of all the limits that we
8:38place on criminal power is a functional
8:41interaction that revolves around one of
8:44the most basic guarantees that we
8:47should never forget, which is the idea
8:50of the act. I can only be punished if I
8:54have committed an act. And that act,
8:57which is like a basic guarantee, a
8:59pivot, is not enough. That has been a
9:02great restraint against all attempts to
9:05mislead me by punishing me for my ideas
9:07, for my thoughts, for my personal
9:09characteristics. The idea of the act as
9:12the category of technical guarantee is
9:15a great achievement. This basic
9:18guarantee will then be strengthened
9:21through three dimensions. We will
9:25include a set of guarantees that will
9:27be concerned with converting the
9:30concept of the fact into something much
9:33stricter; that is, making the concept
9:35of a criminally relevant fact, that is,
9:38the fact that enables the accuser's
9:41claim, the fact that enables the
9:43imposition of a penalty, something much
9:46narrower. I call these verifiability
9:50requirements, some others call them
9:52strict criminal guarantees. I like to
9:54call them verifiability requirements
9:57because the functional interaction of
9:59the entire system of guarantees has to
10:01do with this fundamental option that
10:04lies behind the entire system of
10:06guarantees, which is a criminal process
10:08committed to the truth and a truth that
10:11is demanded of the accuser as a burden.
10:15Well, then we will have this set of
10:17guarantees that have to do with the
10:19criminal relevance of the facts: that
10:21the fact is provided for in the law,
10:23that the fact must be culpable, that
10:25the fact has caused harm, that there is
10:28proportionality and everything that the
10:30theory of crime has developed around
10:32the relevance of the fact. Hm. This is
10:35not the topic of today's conference,
10:37but we need to be clear about it. Then
10:40there is a second dimension of the
10:42system of guarantees. I call them
10:45verification conditions, because just
10:49as in this first dimension we place
10:52burdens on the accuser regarding the
10:55fact that will allow or enable their
10:59claim, then the specific construction
11:02of the truth of that fact is done under
11:05conditions. It cannot be done in any
11:09way, but will have to be done in a
11:12public trial, before an impartial judge
11:14, allowing in any case the
11:16confrontation or contradiction by the
11:19accused and their defense attorney.
11:22Well, and many other guarantees that
11:24form what we later study in the theory
11:26of criminal trial. Hm. So with the
11:29theory of criminal offense, we study
11:31all the conditions of relevance of the
11:32fact, the requirements of verifiability
11:34. In the theory of trial we study all
11:39the conditions that the accuser must
11:43meet in order to consider the fact
11:46proven, that is, verified, without
11:49which the judge will not enable their
11:52claims. But there is a third dimension,
11:56and that is where we get into the
11:58subject, which is what we call rules of
12:00verification. Why? Because, beyond the
12:04strict development of the requirements
12:07of verifiability, beyond the extensive
12:10development of all the conditions of
12:13verification, that truth about the fact
12:17that is required of the accuser is
12:19constructed with information; and that
12:25information, a fundamental idea of the
12:29system of guarantees and of the entire
12:32theory of proof, guarantees that this
12:36information cannot enter the criminal
12:39trial in any way, nor can it be
12:42analyzed in any way. This third
12:46dimension, which is what we call the
12:48rule of verification, is precisely what
12:50develops the theory of evidence, which
12:53is what we are going to see in this
12:55talk: theory of crime, theory of
12:57judgment, theory of evidence. These are
12:59the three major theories that develop
13:02the system of guarantees. And this is
13:06very important because Sentís Melendo
13:10already said it more than 60 years ago
13:13and Tarufo repeated it 20 years ago.
13:17Everything that has to do with the
13:20theory of evidence entails a kind of
13:23conceptual indeterminacy that generates
13:26a lot of confusion and makes us lose
13:29precision. That is why, now that we
13:33have made this delimitation, it is
13:35clear that I am going to talk about
13:38evidence as part of the system of
13:40guarantees. And this means being clear
13:44about other dimensions of acquiring
13:48information. We have to have a very
13:51clear differentiation between what we
13:54call investigation techniques,
13:56investigation strategies and rules of
13:58evidence. Investigation techniques are
14:02a set of instruments that exist so that
14:05the accusers, on whom we have placed a
14:08heavy burden, have real possibilities
14:11of acquiring information. These are
14:15techniques such as, for example,
14:18techniques for finding an object in a
14:21home that has been raided, techniques
14:23for searching for information in a huge
14:26database that is in the cloud or
14:29interrogation techniques to extract
14:32data that is in the memory of a witness
14:35, techniques for carrying out expert
14:37reports, all of these are investigation
14:40techniques that we should not confuse.
14:43merge with the guarantee function, nor
14:46should we confuse what investigative
14:49strategies are with the theory of
14:51evidence, with the rules of evidence.
14:54How do I gradually gather information?
14:59How do I extract the most from a
15:02criminal network that has information
15:05and do it step by step? Those are
15:08investigative strategies. Investigative
15:11techniques, common ones or those that
15:13are done through scientific methods,
15:16are studied by police operations or by
15:18forensic sciences. Uh, they are going
15:21to tell me how and when to use, for
15:24example, different types of scientific
15:27or disciplined methods to obtain
15:29information. That is another issue.
15:32Investigative strategies are studied
15:34when I talk about strategic criminal
15:37prosecution, I am talking about
15:39prosecutors who may have different
15:41types of strategies to build change.
15:44This is not what we are going to talk
15:46about. What I am interested in
15:49highlighting in this conference has to
15:53do with something much stricter, which
15:56is how we limit the entry of
15:59information; How do we prevent the old
16:03phenomenology of information abuse,
16:06false information, purchased
16:09information, popular rumors, prejudices
16:14, archetypes, everything that
16:17throughout history has founded
16:20different types of abuses in the use of
16:24information, from entering the process?
16:29Because we can be very strict in the
16:32requirements of verifiability, very
16:34strict in the conditions of
16:36verification, but if the information is
16:39biased, full of bad information, well,
16:42again, as Ferrayoli tells us, the
16:45guarantee system works as a whole and
16:48we have to strengthen it as a whole, as
16:51if it were a network that contains, and
16:54that cannot have holes anywhere,
16:56because that is where the abuse of the
16:58people seeps in. That said, the
17:00dimension in which I am working is now
17:03clear. It is the strict dimension of
17:08proof of how the guarantee system as
17:12delimiting elements. And this will help
17:17me clarify and generate a set of
17:21concepts that are clearer, more precise
17:25when talking about the theory of
17:28evidence. This function of containing
17:33the proof of the rule of verification
17:37is also carried out in two dimensions.
17:41Hm. On the one hand, on the one hand, I
17:46am going to build or the theory has
17:49built the legal experience, the
17:52political experience, they have built a
17:56set of filters, that is, a set of
18:00filters that...Excuse me for a moment,
18:03I'm hearing some noise from outside.
18:07One second and we're done. Well, I am
18:20going to build a set of filters that
18:23will try to ensure that the information
18:26enters without garbage, without errors,
18:29without this mix that we all know from
18:32when we are in any communication
18:34circuit: that the information, uh, some
18:37is good, some is of poor quality, some
18:40is bad, some can cause errors, etc.
18:43This system of filters that has been
18:46built over centuries has a specific
18:51name, which is the means of proof. The
18:55means of proof, each means of proof is
18:58the name we give to a set of legal
19:01rules, to a normative statute that will
19:04fulfill this limiting function. What
19:09seems important to me about this way of
19:12approaching the problem is that it
19:15allows me to identify a very limited
19:20number of means of proof that fulfill
19:22this function. Because the means of
19:24proof, these filters through which
19:26information enters, these channels
19:28through which the information that is
19:30going to be used in the trial and, by
19:33derivation, in other types of hearings
19:35must necessarily circulate, but let's
19:37think basically about the trial. There
19:40are six, they are not infinite, there
19:43are six. Without the information.
19:46Notice, and this is very important
19:48because it dictates the litigation, it
19:50dictates the preparation of the cases,
19:52it dictates everything. And I want the
19:56information that I want, I want to use
20:00information that is in people's
20:03memories. Well, if it has come through
20:07the ears, through some element of
20:09perception, it is irrelevant, but
20:11information that is in the memory of
20:13the person who has received that
20:15information in a more or less direct
20:17way in the realization of the event, I
20:19am going to use what I call testimonial
20:21evidence. And for centuries, testimony
20:25has been the channeling of information
20:28around those people who have seen,
20:31received that information and have it
20:34stored in their memory. Secondly, if I
20:38want to use special knowledge to enter
20:41the information, we all know that I am
20:44going to use expertise. If I want to
20:48use information that is contained in
20:51some type of medium from stone to
20:53digital media, I am going to use it, I
20:56am going to have to enter it through a
20:59channel, through a door that we call a
21:02document. If I want to enter
21:05information that is in a database and
21:07that database cannot be entered in its
21:10entirety because, as happens today, it
21:13may even be in immaterial places, I am
21:15going to use what is called a report
21:18test. If I want to use information that
21:22is intrinsically linked to a material
21:24object, I will use the material objects
21:27, the objects, the name it has. And
21:30finally, if I want to use information
21:32contained in the parties, that is, the
21:34parties to the conflict, that is,
21:36whether it is the victim or the accused
21:39, I will use a category that we call
21:41the statement of the parties. There are
21:44no other means of proof. When I prepare
21:46the case, I have to be clear that I
21:49will be able to enter the information
21:51through these six channels. In the past
21:54, this was discussed, but it was very
21:56typical of inquisitorial systems. Today
21:58, in the new accusatory systems, this
22:00is not used as a source of information,
22:03which is the direct inspection of the
22:05judge, with all the problems that this
22:07entailed in terms of impartiality, in
22:09terms of changing the status of the
22:11judge. Today, if any of the parties
22:14wants an on-site inspection to be
22:16carried out, they will have to send a
22:18person, but the judge will not go or
22:20should not go if the system works well.
22:23With which the old discussion that was
22:25already taking place 50 years ago about
22:27whether direct inspection was a form of
22:29evidence or not with all the
22:31discussions about whether that was the
22:33possibility of using the judge's
22:35private knowledge. Today, in the
22:37context of modern theory, we consider
22:39that evidence in adversarial accusatory
22:42systems does not exist. With which,
22:44notice how from the point of view of
22:47the theory of evidence, it is
22:49simplified and strengthened for me to
22:51know that I have six means of evidence,
22:54six doors through which information
22:58must enter the trial by derivation. You
23:04may say, "Well, but there is the issue
23:07of what they call unnamed means of
23:09proof, atypical means of proof, but
23:12that is actually a false discussion. We
23:15can be open and see if there are any
23:18new means of proof in the future. This
23:21is not essentialism, but if you look at
23:23the legislation, the legislation will
23:25show it. Look, if you have doubts about
23:28which of these doors to use, enter
23:31through the one that has the greatest
23:34analogy. So, this has allowed when
23:37discussions took place at some point
23:40about the old one about photography,
23:43about videos, about this, it was
23:46introduced by documents, etc., etc.,
23:49etc. In other words, the same system
23:52has a solution path. This and the
23:56problem of unnamed means of proof is
23:59rather a conceptual problem that from a
24:01practical point of view is solved
24:04because I have to apply one of the
24:06limiting statutes that have to do with
24:09these six means of proof. The same
24:11thing happens today with digital
24:13evidence, with a lot of things that in
24:15reality will either be a report or
24:19information that will become a document
24:21, etc. Mm, because since I am looking
24:24for the system of guarantees, not the
24:26effectiveness of the investigation,
24:29what interests me is that this
24:30information is supported by one of the
24:33statutes that regulate these means of
24:35proof. Now, this is the first point.
24:42Now, each of these six means of proof
24:46has not only a definition, but rather a
24:50set of very complex rules that make up
24:54the entire world of what we call
24:57legality of evidence. The legality of
25:01evidence is linked to a very important
25:03category in the theory of evidence
25:06which is admissibility. And we are
25:09going to say that, especially in this
25:12era of reform in Latin America,
25:14admissibility is a specific element,
25:17that is to say, we want the information
25:19to enter under conditions of legality
25:22and if it does not comply with the
25:24conditions of legality, we are going to
25:27say this information is invalid. If it
25:31is, uh, it will be inadmissible. If it
25:33cannot be produced, if it has entered
25:35under conditions of invalidity,
25:37everything that has to do with the
25:39problem of unlawful evidence and its
25:41derivations, its greatest extension,
25:43which is a problem of extension of
25:45nullities that has to do with what has
25:47been called the fruits of the eno tree,
25:49will be excluded. So, but this whole
25:53world is the world of the legality of
25:55evidence. No, no, I am not saying
25:56anything about the value of this
25:58evidence, about whether this evidence
26:00is useful or not, whether it allows me
26:02to reach the truth of the accusation or
26:04not. I am simply discussing whether it
26:07is entering through valid channels or
26:09not. Admissibility, legality. The rules
26:14that exist, that have been built over
26:21the centuries, about the conditions of
26:24validity of each of these means of
26:27evidence, are very large, they are
26:30immense, they are many; and if on top
26:33of that one begins to see the problem
26:36of jurisprudence, it is quite common
26:39for this to end up being a sort of, of
26:43regulations and rules in which the
26:45litigating lawyer usually ends up
26:47getting lost. Therefore, to structure
26:54the knowledge of the legality of all
26:57these means of proof, I prefer that we
27:00organize the study of that normative
27:04statute of all, of all those basic
27:07rules into five categories. All
27:11categories that we have to know well
27:13and allow us to organize the analysis
27:15so that we have a lot of detail, but it
27:18is not confusing. The first category is
27:22what we call acquisition rules, that is
27:25, the discussion of when information
27:28can validly circulate through that
27:30channel, through that means of proof or
27:33not. This is full of problems. For
27:37example, no one is going to argue that
27:40I can enter the information of a
27:42witness who has directly observed the
27:45fact with one of his senses. I call him
27:48and say," You saw, you touched, you
27:50touched. "Well, yes, I say and he tells
27:52me that. That is how it enters into the
27:56normal core of acquiring information
28:00through the means of witness evidence.
28:03Now, everything starts to get
28:05complicated when this witness told
28:07another person and this person told
28:10another and then I can no longer count
28:13on the original witness, so I only have
28:16the hearsay witness, etc., etc. We are
28:19discussing when and to what extent the
28:22conditions of validity of testimonial
28:25information can be met. Obviously,
28:27those concerned with effectiveness,
28:30that is, the accusers, those who have
28:32to prove the case in order for their
28:35claim to be upheld, will often try to
28:38open up the space for validity. The
28:41defenders will try to close it and that
28:44is where the physiology of the
28:46accusatory system begins, this that we
28:49call fundamental antinomy and the
28:51balances that are being built. For
28:54example, I will put this, there are
28:56many problems that we can talk about in
28:59acquiring information through the
29:01witness, but there are many rules. I
29:04put it, for example, because all the
29:07rules linked to the witness of Hearsay
29:10or what in the Anglo-Saxon world is
29:12called hear, eh, eh, are superclear. Do
29:16not forget that at a certain point,
29:19authors who are dedicated to G, such as
29:26Cross and others in the Anglo-Saxon
29:29world, come to count as many as 50
29:32exceptions to the concept of witness,
29:35eh, and 50 ways of admitting
29:37information that was not under the
29:40normal conditions of testimony. But
29:43there is a very big debate, that debate
29:44continues to exist. Eh, and, well, it
29:48is worthless. The same is going to
29:51happen with expertise. Someone is going
29:53to say," Well, expertise is
29:55characterized by its basic acquisition
29:57rule that it has to have special
29:58knowledge. "Now, what special knowledge
30:01is valid? And here we have all the
30:04discussions that there are around junk
30:07science. Notice how in the Anglo-Saxon
30:10world it was necessary to make a set of
30:12rulings that revolve around what is
30:14known as the DEERT rules or rules of
30:17admissibility of expert evidence to
30:19know when information can validly enter
30:21the expert evidence and when it cannot.
30:24That there is a standardized science,
30:27that it has peer control, that can tell
30:29me the margin of error it has, etc.,
30:32etc., etc. And this, although there are
30:35some hard sciences that comply with it,
30:37basically when we enter the world of
30:40expert evidence linked to social
30:42sciences, or much more so to
30:44psychological expert evidence, a very
30:46big debate begins about admissibility.
30:49And so, with each of the means of proof
30:52: when a document is a document, what
30:54are the conditions for a person to
30:56testify as a victim or have to acquire
30:58as a witness. Here, we had the old
31:01decision of the French Code of 1808
31:04that the victim was not recognized as
31:07the victim, but as a witness. Today, we
31:11recognize the victim as the victim
31:13because, just as we recognize that the
31:15accused always declares in his or her
31:17own interest, the victim must also
31:19declare in his or her own interest.
31:22That is why we use a category that has
31:24always been widely used in civil
31:26procedural law, much less in
31:27inquisitorial models, such as the
31:29statement of a party. Well, this first
31:32level is what we call acquisition rules
31:34. Then we will have a second level
31:37where there will be a lot of rules
31:40called preservation rules. Normally,
31:43information is not produced immediately
31:46, so I have to prevent that information
31:49from being contaminated, distorted, or
31:52influencing other things. That is, when
31:55we talk about objects, we talk about
31:57the chain of custody, but in reality,
31:59there are many preservation rules in
32:02each of the means of evidence. How do I
32:04consolidate and stabilize a database
32:07with what are called freezing
32:10techniques? How do I keep a witness's
32:13statement unaltered? They can be
32:16anything from advance evidence to
32:18witness protection systems, etc., etc.
32:20and so on. I have a category called
32:22preservation rules, which is very clear
32:25because it involves keeping information
32:27unaltered from the first time it was
32:29obtained until it is produced at a
32:31later date. Then I will have production
32:34rules. All evidence has specific
32:36production rules so that it is not
32:39distorted. So they will tell me," Look,
32:41the witness must be examined orally, do
32:43not make or bring me written statements
32:46. The expert must account for the
32:48methods used. You are the one proposing
32:51the evidence, you must conduct and
32:54direct it, and so on. We call these
32:57production rules. There is a fourth
32:59category that we call control rules.
33:03Why? Because precisely because we want
33:07to limit information, it will be
33:09understood that it is one of the most
33:11direct manifestations of the right to
33:14confrontation. Hm. That I can control
33:17how the information comes in. That's
33:20where the cross-examination of expert
33:22witnesses comes from, the discussion
33:25about whether the accused, when he
33:28wants to make a statement, must
33:30necessarily submit to a
33:32cross-examination, the comparison in
33:34the case of documents, the examination
33:37in the case of objects, etc., etc.,
33:40etc. And there's a fifth category
33:42that's more or less extensive, which
33:45are directly the evaluative
33:48prohibitions. When I directly say, look
33:51, that information can't come in. In
33:54the past, there were some rules; for
33:56example, I don't know, some rules that
33:59come from the early 19th century, the
34:02Napoleonic and French codes: you can't
34:04prove marital status through witnesses,
34:07which has been relativized today. But
34:10also today, based on the right to
34:12privacy, based on discrimination, there
34:14is certain information that can't come
34:16in directly. We call that evidentiary
34:19prohibitions, which are also subject to
34:23debate. Therefore, the first step taken
34:26from the theory of evidence in the
34:29sense of guarantee is to build this
34:31entire system of filters that limit the
34:35entry of information, normalize the
34:37entry of information, stabilize the
34:40entry of information, and all this is
34:43what we call the legality of evidence.
34:46And the discussion, the litigation that
34:49takes place in the criminal process
34:52around the rules of legality, of
34:54validity of how this information enters
34:56, we call it discussions of
34:58admissibility. Well, the first part,
35:03the second part of the function of the
35:06guarantee system is no longer resolved,
35:10we assume that we have resolved the
35:14problem that the information is
35:17entering in a valid way. Now, what is
35:21it that we should be concerned about?
35:23How do we give value, not validity, to
35:27that information so that we can then
35:31make the decision that, indeed, the
35:34accuser exceeded the standard of truth
35:38that the system demands of him and,
35:41therefore, his claim, which is usually
35:45prison, is admissible and valid? He has
35:49complied with the rules, the standards,
35:51and therefore the judge is going to
35:52tell him: "Go, sir, to jail." This
35:55second part is what we call analysis of
35:57the evidence or evaluation of the
35:59evidence. Okay, let's see, there we are
36:06. Oh, I had a blackboard. This is what
36:11we call analysis of the evidence or
36:13evaluation of the evidence and it is
36:16currently at a boiling point in its
36:18discussion. Here, excuse me, I have to
36:23make a small historical note. Okay, in
36:28the 11th century, when it was abandoned
36:31, we put the 11th century because it is
36:34very well known that this has to do
36:36with the Council of Lateran, when the
36:39system of hordeaux was abandoned, which
36:42today we do not have a vision as it was
36:45in ancient times, that the hordeau was
36:48a kind of manifestation of barbaric and
36:51magical thinking, which is, uh, it was
36:53rather a trick that the jurists of the
36:5619th century played to legitimize
36:58themselves, because the ordeal was a
37:01complex system. Foucault already
37:03started with this and there are other
37:06authors such as Tarrada Saborita in
37:08Spain who have very extensive studies
37:11on how the ordeal was a very complex
37:14system of rituals where behind it was
37:16the composition, that is to say, the
37:19idea that someone was going to settle a
37:22serious conflict such as a homicide
37:24where the clans intervened, through an
37:27affirmation of truth, it was not
37:29satisfactory in terms of the legitimacy
37:31of the decision. So, it was said: "Well
37:34, God is going to settle this, the test
37:36is going to settle it, whoever it was
37:39is going to settle it", but in reality
37:41what lay behind it was a set of
37:44composition rituals that gave the
37:46communities time to come to terms and
37:48come closer together. That was what is
37:51called vindictive justice. Those were
37:53the hours, but at a certain moment, due
37:57to a set of political and social
38:00factors also studied by Foucault and
38:04the truths and legal forms, a change
38:07occurs. This system, where clans,
38:11groups, and tribes come to an agreement
38:15, is either left aside or a little bit
38:19because a more powerful central power
38:21is starting to be built: the feudal
38:23lords who want to have more control
38:25over their lands, some of the feudal
38:27lords who want to start being a king
38:29with greater power, not just symbolic
38:31power. So the logic of intervention in
38:34serious conflicts, such as criminal
38:37conflicts, changes, and there is a
38:40double movement. There is the idea that
38:43an authority makes the decision and
38:46says whether it is true that this lord
38:50or this king or this vassal committed
38:53such an act or not. This idea of
38:55whether it is true or not, that is to
38:58say, the dictum of a person or a group
39:01of people, clearly arises in the early
39:07decades of the 11th century, 1215,
39:09which is the birth of both the
39:11foresight of the sardalia and the birth
39:13of the Inquisition, but it is also the
39:16date of the Magna Carta; It is taken as
39:18a symbolic date because, in reality,
39:20what is going to begin there is a slow
39:23process. Nor were the hordeals, just
39:26imagine, repealed overnight. It takes
39:28about a century and a half, two, for
39:31this to develop. But the interesting
39:33thing is that when this European figure
39:40of the inquisitor, the inquisitorial
39:42judge, who is an envoy of the king or
39:44the Pope, sometimes both together, the
39:47Misi, appear, they are envoys, they are
39:49delegates. And in the Anglo-Saxon world
39:51, for a question of power, because Juan
39:53Sintierra had lost a battle, there were
39:55going to be 12 people, that's where the
39:57juries, the constitution, were born. In
40:00both systems, which both are the
40:02overcoming of the hordeals, it does not
40:05occur to anyone that the judge could
40:08make a decision based on his own
40:10conscience, based on his own knowledge.
40:14Nothing, on either side. Nobody had
40:18that idea. Furthermore, there is a lot
40:21of old literature that is going to be
40:23banned, it is going to repudiate
40:26exactly what are called judgments in
40:28conscience. What is always going to be
40:32said there is that the judges, whether
40:35the inquisitorial judge or the jury, it
40:39is a parallel story, they are going to
40:42have to make their decision secundum
40:45allegata probata, that is, the
40:47litigation and the evidence are certain
40:51. But in addition to this, a set of
40:54instructions are going to be generated
40:56on how to do this. That is where the
40:59jury instructions system that exists
41:01today is born. In my country we also
41:03have juries. So, there is a very
41:06complex system where the jury is given
41:09instructions on how to make its
41:12decision. In the English model, they
41:14make more decisions about the
41:15evaluation of the evidence. The
41:17American model is more closed. That is,
41:20anyway. But there is a whole model of
41:23jury instructions that are not
41:25mandatory instructions, but rather are
41:28like advice on how to make a decision.
41:31In the inquisitorial world, it was not
41:33believed that the judge could make his
41:35own decisions and that is why
41:37everything we know as the system of
41:40traced evidence was developed. That is
41:42to say, they will no longer be advice
41:45or instructions that the judge and the
41:47litigants give to the jury, but now
41:50they will be mandatory assessments
41:52established in the law, which is what
41:54we know as the system of established
41:56evidence, the system of legal evidence.
42:01This lasts, these systems develop in
42:03parallel. In the case of the system of
42:05legal evidence, they last for centuries
42:07. This system will only be eliminated
42:16at the beginning of the 19th century.
42:19Look, we are only talking about the
42:2111th century, at least 500 years of
42:23production of all these ideas. I say
42:27this because never in any system of
42:30evaluating evidence has there been this
42:33idea that judges, let alone juries, act
42:36according to their conscience. And
42:39there is a very bad formula from a
42:41great proceduralist, Eduardo Cutubure,
42:43who said that intimate conviction meant
42:46that I could fail with the evidence,
42:48without the evidence, against the
42:50evidence, which is an absolute nonsense
42:52that, fortunately, also 60 years ago,
42:55in Time, Merelendo had told him: "We
42:57all admire Cutubure, but here we do not
42:59know what happened to him because this
43:02has no backbone." Now, uh, this system
43:08that was developing was going to have a
43:10crisis point in the French Revolution.
43:13You know that the French Revolution was
43:16when the French, the Jacobins, the
43:18Republicans said, "Enough with the
43:21inquisitorial system, let's go to the
43:23English jury model." Hm. There was a
43:27criticism that Bentan made there
43:29because the English system of
43:31instructions had also become too
43:33bureaucratized and Bentan said, "No,
43:35you can't work like that. No, no, this
43:37has become a kind of festival of
43:39exceptions that no one can overcome."
43:42These are the criticisms of Ventam,
43:44which are, for example, in his treatise
43:47on judicial evidence from 1820 and
43:49something, 30. Well, but when the
43:52French Revolution wanted to move to the
43:55jury system, it obviously encountered
43:59this entire system. Let's not forget
44:01that until 1792 the idea was to
44:05transplant the entire English system
44:07with juries, everything. But this, in
44:10the French model, begins the entire
44:13discussion that follows the
44:15vicissitudes of the French Revolution,
44:18which is weakened, which somehow ends
44:21with the reform, with the Thermidorian
44:24reaction, Thermidorian, let's say, and,
44:27uh, and that clearly, Napoleon would
44:30say: "Gentlemen, the French Revolution
44:33is over." The Napoleonic world begins.
44:36The French Code of Criminal Instruction
44:38begins, which is what we call the
44:39Polish code. This will continue, then
44:43it will be followed by all the modern
44:46legislation, so to speak, of
44:48continental Europe, and it will be
44:51reflected in Latin America until the
44:54reform process begins in the 90s; and
44:57in Europe, the reform process towards
45:01accusatory systems also takes place in
45:04the 90s onwards. Well, but there is a
45:07problem there and that is that since
45:09the mixed system, what Ferrarioli calls
45:12, a mixture that ended up being
45:14monstrous, does not include juries,
45:16does not include them widely, it
45:18rethinks the professional judge, but
45:20does not want to have the system of
45:23legal evidence. Even some Enlightenment
45:25theorists such as Ferrayoli or Petro
45:26said, "No, no, no, no, do not throw
45:28away the entire system of legal
45:29evidence, because then we are left with
45:31the judge of conscience." Instead, then
45:34and then the story is that the system
45:37of legal evidence ends, which
45:39undoubtedly existed, could not continue
45:42, but it is not replaced by a system of
45:46instructions like the juries that
45:48continue their history to this day. And
45:52so the new model of the Simonónico
45:54judge remains, without the system of
45:57legal evidence, without jury
45:59instructions and without a guide. This
46:05problem of discerning what guide there
46:07is for the process of evaluating the
46:10evidence so that it does not derive
46:12from the arbitrariness of the judge who
46:15pushes it, who makes his decisions
46:17according to his opinion, according to
46:20his conscience, continues to be the
46:22problem to this day. And here we are
46:26going to have then in this problem; we
46:28are going to have, here begins the
46:31problem of guaranteeing the system of
46:33evaluating the evidence, because we are
46:35going to move to a system of free
46:37conviction. Free conviction or intimate
46:40conviction, which are the same, means
46:42no legal evidence, but it is not clear
46:45what rules this judge has to follow.
46:49And there begins a discussion in which
46:51we are immersed today because some
46:53sectors, seeking what the project
46:56called "No, no, the rules are no longer
46:58legal rules, they are not instructions,
47:01but rather they are merely
47:03epistemological rules and the
47:05requirement of motivation." Others, I
47:07am in that case; I believe that the set
47:10of rules that exist, uh, is a set of
47:12rules that accompany the structuring of
47:15the litigation, which starts with
47:17precision, the right to prove,
47:19relevance, which is part of the
47:21adversarial litigation that the case
47:24presents, opening litigation, which
47:26goes through the rules of evidence
47:28management that are typical of
47:30accusatory systems, which goes through
47:33the allegations, etc., etc., etc., and
47:35that already begins to structure a
47:38system for me and then they are going
47:40to ask me another set of problems where
47:43we are going to have to build rules
47:45that have to do with relevance. So,
47:48notice that we have admissibility as a
47:50point, relevance as this discussion
47:52about whether we are going to be
47:54precise about what the fact is. to
47:57prove the controversial fact, uh, which
48:00is one in the secundum allegata and
48:02probata is the idea of controversial
48:05facts, not just anything. And finally
48:08the problem of relevance, which is the
48:11set of rules that we have to build to
48:15determine when that information is
48:17sufficient to allow us to pass the
48:24standard that we set for the accuser to
48:27say what you say is true. That is the
48:31problem of relevance. Relevance, unlike
48:33admissibility, is not an all-or-nothing
48:35system. The evidence is admissible or
48:37inadmissible. On the other hand, when
48:39we analyze relevance, the relevance is
48:42greater or lesser, it is more or less
48:44useful, the information is gradable.
48:47Now, again, the system of free
48:49evaluation of evidence means that we
48:51are going to have a system of rules
48:53around that. So, there we have to
48:57separate different steps and moments
49:00and dimensions of the dimension of
49:02relevance. The first will have to do
49:05with what we call credibility analysis.
49:09Credibility analysis is no longer an
49:12analysis of information, but of the
49:15capacity distortion that the medium has
49:18by itself. One of the great theorists
49:22of evidence, such as Shun, David Chun,
49:25will rightly say that this is similar
49:28to the concept of channel noise. When
49:31we listen to the radio, we have a
49:33tuning that faithfully transmits the
49:36voice of the announcer and if it is not
49:38well tuned or the radio is bad, it
49:41causes noise, I do not hear well. So,
49:43credibility is a discussion about how
49:46much noise arises from the channel that
49:50I am using. If the witness has
49:52interests, if the witness does not have
49:54production channels, all the
49:56discussions of credibility, if the
49:59defendant is not as suitable as he
50:01seemed, if the documents in reality, uh
50:04, it is not known if they are
50:06trustworthy or not, if the objects in
50:08reality are massive objects, that there
50:11are many identical copies, if, well, if
50:13the parties, uh, introduce too many
50:16distortions, then it is no longer their
50:18genuine interests, but desires for
50:21revenge, whatever. The entire
50:24discussion about credibility is a
50:26discussion about the medium and how
50:28much distortion the information
50:31produces. Once the discussions are
50:33overcome, credibility, that the
50:35litigant has to be clear when he is
50:36discussing credibility, when he is
50:38asking, he is accrediting the witness,
50:40he is accrediting the expert or he is
50:42discussing each of the credibility
50:43problems that the six means of proof
50:45have credibility problems. Only then
50:47will we enter the second part of the
50:49concept of relevance that has to do
50:51with weight. Weight means the greater
50:56aptitude that the information has, not
50:59the means of proof, the information to
51:03get closer to the truth of a statement.
51:06If the accuser says, "John was at the
51:09scene of the crime," I am going to have
51:11a lot of information of one type,
51:13another, or that. I am going to have
51:15inferential chains that I am building
51:17and finally the judge is going to have
51:20to see under the guidance of the
51:21arguments of the parties telling him
51:24that all this information that they
51:26have is sufficient to say John was at
51:28the scene of the crime. This, as you
51:31can see, is something that already
51:34introduces me to something much less
51:37tangible and therefore this is where
51:40the discussion begins about whether I
51:43have to establish standards. In general
51:48terms, the weight of information is
51:51always a confrontation between the
51:54specific information of John was there
51:57or John was here or John this with some
52:01generalization. With some
52:04generalization. Uh, this is what
52:07generalizations can be like, technical
52:09and scientific rules. Uh, for example,
52:11if I discover that the boots, the
52:14footprint of John's boots are at the
52:16scene of the crime, I will have a
52:18generalization that says: "Well, if the
52:21footprints are there and these
52:22footprints are from the ones that John
52:25was wearing, I can make a leap." That
52:27is inferential or indicative evidence
52:29saying: "John was there, at least in
52:31those boots." Someone might say, "Well,
52:33this isn't complete. Someone with
52:35different skills might be, that's true,
52:37but that's where I start to build. Eh,
52:39when I have technical rules, scientific
52:42rules, it's easier. Where I have a
52:45problem is when I approach rules that
52:48are generalizations of empirical life.
52:51These are what are called maxims of
52:52experience. And there I have a fairly
52:55weak structure on which a lot of work
52:58needs to be done because the rules, the
53:02generalizations about social life are
53:05empirical. A couple of years ago we
53:08were looking at a ruling in my country,
53:10a sentence in which a person was
53:12convicted who claimed to be making a
53:14generalization. Well, it had to be said
53:17that the driver of a taxi, a remis, a
53:19rental car, effectively knew that his
53:22passengers were carrying drugs in their
53:25bags, which was quite difficult. Well,
53:28but the argument that the prosecutor
53:30used and that the judge accepted is
53:33that how could this person not know
53:35that his passengers were carrying drugs
53:38in their luggage if every driver of a
53:40rental car, a taxi, a remis, when he
53:43picks up a passenger checks what they
53:45are carrying in their bags?" the BS.
53:48And we were all shocked because never
53:51in our lives had our bags been searched
53:54anywhere. This was a huge mistake, but
53:58see how it works. Driver Pedro knew
54:02they were carrying drugs because every
54:05driver checks what their passengers are
54:07carrying in their bags. It's an obvious
54:11mistake, made later in the control of
54:16the correctness of the evaluation of
54:17the test, but the mechanism is clear.
54:20Particular information is confronted
54:22with a generalization. A generalization
54:26. Another mistake that there was was,
54:30very, it said something like: "It is
54:33evident that this person was in the
54:35place, because no sane person who is in
54:38Mar del Plata, let's say a tourist city
54:41of ours, on a sunny Saturday afternoon,
54:46which was a town where there was only
54:48heat and no beach or beer." So he says
54:51that I am giving value to the
54:53information Juan was there with the
54:55generalization of this is correct
54:57because no one in their right mind on
54:59that hot, sunny day on the beach would
55:01go the other way. You will tell me, "
55:04But this is weak." Of course it is weak
55:06. In a classic book that introduces the
55:09whole problem of maximum experience,
55:11such as Federstein's in 1890 and
55:14something, he himself says, look, this
55:17is complex and therefore we have to be
55:19very analytical and test. Tarufo is
55:23going to say this in his book on
55:25maximum experience and in that
55:26magnificent book that he recommended to
55:29everyone called proof of facts. Tarufo
55:31himself is going to say, "Look, well,
55:33this leads us to have to test the
55:34maxims of experience. Well, then there
55:38I see the weight that each piece of
55:40information can have and then I will
55:43have a third path to finish completing
55:45the weight, the proof, which is what I
55:47call it, where I recover a holistic
55:50vision and a debate that is called
55:52atomism and olism, because atomism
55:54makes me see the weight of each of the
55:57statements of the affirmations. olism
55:59leads me to what we know as the
56:01totality of the proof, the set of
56:04circumstances that we technically call
56:06coherence. If this information is
56:08consistent with this, with this, with
56:11this, they are reinforced by each other
56:13. As you can see, what is true today,
56:16based on what are known as new studies
56:19of evidence, based on the work of
56:21Tarufo who made a connection between
56:23the continental European world and the
56:26Anglo-Saxon world, based on everything
56:28that is currently being developed in
56:31everything known as the Girona school,
56:33Jordi Ferrer, the rationality of
56:35evidence, uh, where in all the debates
56:38that we have in Latin America, there is
56:40a new, a new concern that has to do
56:44with, uh, uh, what are the objective
56:48criteria that judges use to make that
56:54decision. There will be some who say,"
56:56The only way to generate those
56:58objective criteria is through
56:59motivation. "But others answer him, and
57:02Tarufo himself says: well, the
57:04motivation may be right or wrong, it
57:07assures me of control, but no one says,
57:10and here we have all of American
57:12realism saying the opposite, that
57:14because I have motivated, it means that
57:17I have used the criteria that I later
57:19wrote as criteria that have guided my,
57:22uh, my solution. Finally, to finish,
57:25because I had said that I was going to
57:28speak for uh 45 minutes, I am only
57:30going over a few minutes. Finally, all
57:32of this, we are going to have one last
57:35objective criterion, which is to say:
57:38well, when is this information
57:41sufficient to say:" Mr. Prosecutor,
57:43have you met the standard that we have
57:48set for you? "The name of that standard
57:50is" beyond a reasonable doubt "or"
57:52construction of certainty ", and today
57:55we have a whole debate because some,
57:57like Larry Laudan (who passed away a
57:59few years ago), say:" That is not a
58:02standard at all. "Uh, of course,
58:04because we are never going to see that
58:06it is 90%, 95%, 93%; it is impossible.
58:09And others whom I believe more, such as
58:12Whitman, say:" No, no, no, but the
58:14standard is not built on the basis of
58:16knowing whether it is necessary to do
58:1992, 93, 95, 89, but rather the standard
58:21has been built historically through a
58:24taxonomy of doubts that are reasonable
58:26or unreasonable. "That is to say, you
58:29can always have doubts. This is
58:31explained very well in a book by
58:33Whitman called The Theological Roots of
58:35the Criminal Process where he dedicates
58:37a couple of chapters to the development
58:39of reasonable doubt and scrupulous
58:41conscience. You can have 1000 doubts,
58:43but since that century we have been
58:45clearly constructing which doubts are
58:48rational and which doubts are
58:50irrational. If you have a doubt that
58:52fits into this catalog of rational
58:54doubt, then you do not have certainty.
58:57If your doubt is a scrupulous doubt,
58:59therefore, we do not consider it, we
59:01are in a place of certainty. That is to
59:03say, it is not a positive analysis of
59:05the percentage by which we approach the
59:08truth, but a taxonomy of doubts into
59:10reasonable and unreasonable ones. Hm.
59:13So, it is said, uh, note that it is
59:16clearly understood there that the
59:19standard is beyond a reasonable doubt.
59:22If there is a reasonable doubt, no, do
59:25not deny the accusation. If you have no
59:28reasonable doubt, then you have
59:31certainty, admit the accusation. Come
59:35on, then, to finish, and I remain
59:36available to answer your questions.
59:39Like the entire theory of evidence seen
59:41in the system of guarantees, it will
59:43resolve, in an enormously detailed way,
59:45the problems of admissibility that I
59:48will later litigate, and that is why it
59:50is necessary for us to have a clear,
59:52simple, and orderly analytical scheme,
59:54so as not to get bogged down in details
59:57, and then it will generate an entire
59:59structure so that judicial reasoning is
1:00:01guided by the litigation, is
1:00:03circumscribed. And is as transparent as
1:00:06possible and guided by the greatest
1:00:08number of objective criteria that we
1:00:11can construct within a rationality that
1:00:13will always be a limited rationality,
1:00:16because the judge does not have
1:00:18unlimited time, nor does he have an
1:00:20unlimited conscience, nor does he have
1:00:23an unlimited psychology, as Caneman and
1:00:26all critics of the theory of rational
1:00:28action teach. With this, with that
1:00:31second part which is the rational
1:00:33analysis of the evidence, the
1:00:34assessment of the evidence, the
1:00:36rational assessment of the evidence,
1:00:38the system of free conviction (call it
1:00:40whatever you want), you see how this
1:00:43third dimension of the system of
1:00:44guarantees is completed, in such a way
1:00:47that we are strict about what fact
1:00:49enables me to be punished, we are
1:00:51strict about what the conditions are
1:00:54for making decisions and we are strict
1:00:57about how the information must be
1:01:00entered and how I must analyze it so
1:01:03that the decision, uh, is valid. Behind
1:01:06all this is something that must keep us
1:01:09alert because if in Becaría's time the
1:01:12criminal power committed abuses, since
1:01:16then until now the state has multiplied
1:01:19its abusive capacity by 1000 and we
1:01:22have experience every day of
1:01:24uncontrolled criminal powers. Well,
1:01:27thank you very much. I hope this has
1:01:29been useful to you and I remain at your
1:01:32disposal for any questions. Genis, I
1:02:18don't know how we organize this
1:02:22question-and-answer process or if you
1:02:23have any questions, you tell me.
1:02:26However you want to direct them,
1:02:28Alberto. Okay, we invite all
1:02:31participants to take advantage of this
1:02:35opportunity to exchange ideas or raise
1:02:42doubts. The floor is open. Well, if
1:03:50there are no questions or comments, we
1:03:55will prepare for the next conference.
1:04:02Well, let's wait, I don't know. Let's
1:04:11see, they asked me if we can
1:04:14wait until practice allows for its
1:04:16application. Well, application is
1:04:18always problematic and I,
1:04:21Alberto, think that's a question there.
1:04:24Good evening.
1:04:26How are you, Professor Binder? How are
1:04:27you doing? Caraxiolo León is speaking
1:04:29from Merida, Venezuela. I can't
1:04:31believe it. How are you? How are you
1:04:34doing? Receive a big thank you. We've
1:04:37had
1:04:37beers. Uh-huh, tea. Also, we've had a
1:04:42lot of affection, which is very nice to
1:04:45hear from you. I'm
1:04:46very happy to hear your conference.
1:04:49Well, do you know how well our judicial
1:04:54situation is in Venezuela? Uh, the
1:04:59quality of the judiciary is no longer
1:05:02there. All theoretical facts are thrown
1:05:06out the window and those who exercise
1:05:09legal representation, that is to say
1:05:11judges and prosecutors, are not
1:05:14sufficiently prepared. There is
1:05:16improvisation in the occupation of
1:05:18positions that allows, of course, to
1:05:21discard all these things that you
1:05:23mentioned as evidence. I would like you
1:05:27to comment on the weapon of motivation
1:05:31in Venezuela. Of the few that remain,
1:05:34there is a great debate, sir, about
1:05:36whether the judge motivated or did not
1:05:38motivate, whether he valued or did not
1:05:41value. Evaluating the evidence here
1:05:43means making an inventory like a market
1:05:45account. The prosecution promoted 50
1:05:49points, 30 were evacuated. Well, now
1:05:52fewer are evacuated because of the
1:05:54officials and the deterioration of the
1:05:56institutions, the experts are no longer
1:05:58there. Any public body says," I don't
1:06:02have experts in any trial. "There are
1:06:05no experts here anymore. They all left,
1:06:08retired, left the country. But in the
1:06:11matter of motivation to substantiate
1:06:15the evidence, motivation brings an
1:06:17argument against those of us who carry
1:06:21out the exercise. The judge intends to
1:06:25issue a ruling in four lines and all
1:06:28arguments fall through, and later on
1:06:31the higher courts where you appeal, the
1:06:35Court of Appeals or the TCJ, today it
1:06:38will say whether the case is motivated
1:06:41and tomorrow it will say it lacks
1:06:44motivation. The absence of motivation
1:06:47or not has become a way to justify the
1:06:51massive withdrawal of cases in
1:06:53Venezuela. So, this whole theory that
1:06:57we base on the assessment of evidence,
1:07:00on the custody of evidence, on the
1:07:02solemnity of evidence, which is a basic
1:07:05element in any trial to be able to
1:07:08prove one thing or another, to prove
1:07:10guilt in the case of the prosecution
1:07:13and to defend ourselves against that
1:07:16accusation, to assess innocence in the
1:07:18case that we are the defenders, is
1:07:21really disjointed. That is why I would
1:07:25like you to comment on your entire
1:07:27experience, on how motivation is used
1:07:30to justify the unjustifiable, to erase
1:07:33evidence, to not sustain evidence.
1:07:36Finally, receive a big hug. You know
1:07:39how excited I am about Judec's presence
1:07:42once again, not in the classrooms of
1:07:45the Merida Bar Association or in the
1:07:48classrooms of the university, but in
1:07:51this way Judé is becoming the law
1:07:53professor of the entire country. You
1:07:57will see that with a little more time,
1:07:59participation will be massive and a
1:08:02different way of thinking will begin to
1:08:04germinate in this country than the one
1:08:07currently imposed on us, so accept my
1:08:09warmest regards and I am very proud to
1:08:11hear from you. Send my regards to your
1:08:14wife and to all the Argentine
1:08:16colleagues we have seen pass through
1:08:18this university city of Merida. Thank
1:08:21you, maestro.
1:08:22No, no. Well, thank you very much. A
1:08:23first clarification, because I do not
1:08:26want to be ambiguous about this, with
1:08:28all the pain in my soul, but you do not
1:08:31have a democratic republic subject to
1:08:34the rule of law. Therefore, all these
1:08:36things we are talking about, as has
1:08:39happened to us on other occasions and
1:08:41you received so many Argentines, let's
1:08:44say, with affection and support, many
1:08:46of whom later became my teachers at
1:08:49that time. Today, fortunately, we can
1:08:52also receive many, many Venezuelans
1:08:54from Argentina, but it is strictly
1:08:56painful and all the things I say
1:08:58presuppose a minimum standard of a
1:09:01republic subject to the rule of law.
1:09:03Forgive me for being bold and I do so
1:09:07with all due respect. I think they
1:09:10don't have it today. So we are talking
1:09:13about something else. Hm. They will
1:09:16recover it because none of these things
1:09:19last forever and we have this
1:09:21experience. In fact, I stopped going to
1:09:23Venezuela many years ago, precisely
1:09:25because of that, otherwise one feels
1:09:28that one cannot be talking about
1:09:30procedural problems, when what is at
1:09:32stake is a justice system that is not
1:09:34independent, but a persecutory body. So
1:09:37, well, after the pandemic I was lucky
1:09:40that Jorge Rosel also used this route
1:09:43and now Ergenis allows us to recover a
1:09:46community of people who are thinking
1:09:49about the orbit of the rule of law.
1:09:56This is not good, you will see that it
1:10:00can be applied, it can be applied. Also
1:10:02, when we had a dictatorship, there
1:10:04were some who entertained themselves by
1:10:05saying," No, look, this little thing,
1:10:07yes, but here they are making people
1:10:09disappear. Don't talk to me about
1:10:11procedural law, let's say. So my
1:10:12condolences, my hugs, everything you
1:10:15create and it seems to me that these
1:10:17initiatives are part of the recovery
1:10:20that is being done. "That said, there
1:10:22are two discussions about the problem
1:10:25of motivation. Let's give ourselves
1:10:28spaces for theoretical discussion,
1:10:30let's say. That's what we like here.
1:10:33There are two discussions, a serious
1:10:36discussion and a not-so-serious
1:10:38discussion. The serious discussion is
1:10:41the one I'm telling you about. You're
1:10:43going to say," Well, when, let's see,
1:10:45Ferrayoli or Perfecto Andrés Iváñez
1:10:47talk to me about motivation, I take it
1:10:49very seriously, Tarufo, huh? "And they
1:10:52believe that motivation is the only
1:10:55mechanism we have to force the judge to
1:10:58act rationally. If you read Jeron Frank
1:11:03and many other North American realists,
1:11:05no, no, judges make decisions more or
1:11:07less on the spur of the moment and then
1:11:09build their arguments. That is a
1:11:12serious discussion that we can have, as
1:11:14Tarufo himself says," And we do not
1:11:16know if motivation has this preventive
1:11:18effect pushing the judge to rationality
1:11:20or if it simply becomes hypocrisy. "We
1:11:23can discuss that and we have given many
1:11:25seminars and have discussed about it. I
1:11:28tend to think that if motivation is not
1:11:29accompanied by many other things, it
1:11:31does not fulfill the function that it
1:11:33says. Now, in Latin America we have
1:11:36another problem. It is false
1:11:38motivations and false motivations are
1:11:42something that must be denounced a lot,
1:11:44a lot. Today we are working in the
1:11:47Argentine context, which is not great,
1:11:49but it is very far from the things that
1:11:52you have to live with or in the context
1:11:55of other Latin American countries that
1:11:58also have problems. Well, we are
1:12:01working on changing the sentence
1:12:04structure model, because in most
1:12:07sentences handed down in our countries,
1:12:1080 to 90%of what is written is useless.
1:12:15Hm. No one even reads them. It is pure
1:12:17bureaucratic language, language of
1:12:20minutes that covers up arbitrariness,
1:12:22because it is not that there is even,
1:12:24that is why I say, a serious discussion
1:12:27or debate; it is not even a matter of
1:12:29inventing arguments, but rather what
1:12:32they do is a record with this, mention
1:12:34of evidence, a list. That is anything,
1:12:37that is not motivation, those are false
1:12:40motivations that cover up a practice of
1:12:43arbitrariness that resembles what has
1:12:45been rejected since the 15th century,
1:12:48which was the decision of conscience,
1:12:50that is, the decision of the judge as
1:12:53he pleases, without any type of
1:12:55structure. All of that is forms of
1:12:58illegality, of arbitrariness covered up
1:13:01in false motivations that are
1:13:03bureaucratic and therefore should not
1:13:06be accepted. In the case of the
1:13:09assessment of evidence, the
1:13:10Inter-American Court, in the case of
1:13:13Reruyoa et al. , faced with this, I say
1:13:15: no, no, don't come to me with the
1:13:18motivation, because don't forget that
1:13:20the classic doctrine of cassation,
1:13:22which Venezuela had for a long time,
1:13:25also the assessment of evidence, the
1:13:27determination of the fact in the first
1:13:30instance, was unappealable, it was
1:13:32fixed forever. That's what the
1:13:34Inter-American Court said," No, no, no.
1:13:37Knowing all these things, no. "And
1:13:39that's why it allowed, opened, Reruyoa
1:13:42and other cases. Then we have a ruling
1:13:46in our own court that says," No, the
1:13:48review of the conviction has to be
1:13:50comprehensive and in that we have to
1:13:52not care what the reasons were, but we
1:13:54have to re-evaluate the evidence to see
1:13:56if it was done correctly. "Now, this
1:13:59that was said 10 or 15 years ago has
1:14:01opened up a whole discussion about the
1:14:04death of the appeal in cassation in
1:14:06these cases of the classic limitations
1:14:09of the French appeal in cassation, but
1:14:11our higher courts still don't know how
1:14:14to review the assessment of evidence.
1:14:18So we are in a constructive stage. If
1:14:21you read the latest book by Daniel
1:14:23González, who is working on this. Well
1:14:27, what I would tell you is that
1:14:29everything you say is right. Those
1:14:32false motivations are useless, but we
1:14:34are not at a time when, uh...because
1:14:37that has to do with second-instance
1:14:39litigation: how to litigate in second
1:14:41instance, how to produce evidence in
1:14:43second instance, how to control the
1:14:46correctness of the assessment of
1:14:48evidence, which is a topic that is
1:14:50still being studied and examined. But
1:14:53today it is understood that you are not
1:14:55limited to what has been said in the
1:14:57motivation, much more so when our
1:14:58motivations are anything and, on top of
1:15:00that, the motivation regarding the
1:15:02assessment of evidence is even worse. I
1:15:08have spent years trying to research the
1:15:10jurisprudence on evidence in my country
1:15:13to try to extract criteria, to see if
1:15:15there are criteria, accepted
1:15:17generalizations, maxims of experience,
1:15:19that is built into jurisprudence.
1:15:22Everything the courts and the Supreme
1:15:24Court say are just clichés, just
1:15:26clichés that allow you to make any
1:15:28decision you want. So I regret to tell
1:15:31you, but all of that covers up the
1:15:33deepest arbitrariness. Since I am a
1:15:38long-term optimist, I believe that we
1:15:41will achieve it over time. Hm. All
1:15:44countries have taken a lot, it has cost
1:15:47them a lot to build a reasonable,
1:15:49independent justice system, and no one
1:15:51is exempt from going backwards.
1:15:56Alberto, there.
1:15:57But it's great to see you. If you don't
1:15:59know, I'm also happy,
1:16:01Alberto. There are many totally
1:16:04favorable comments, as expected given
1:16:07your wonderful conference. There are
1:16:11also many questions. For example, how
1:16:15should a criminal judge interpret and
1:16:18assess the testimony of technical
1:16:21experts in complex areas such as
1:16:23cybercrime or financial crimes to
1:16:26prevent them from becoming irrefutable
1:16:29evidence of authority?
1:16:31No, no. And we have a very big problem
1:16:34because the key to expertise is the use
1:16:37of special knowledge to convert it into
1:16:41language that the judge does not have.
1:16:44So, the experts who come to complicate
1:16:45things for me and create and present me
1:16:47with algorithms that no one understands
1:16:49, that is not fulfilling the function
1:16:50of the expert opinion. The expert
1:16:52opinion is an interface between the
1:16:54judge's knowledge that cannot be
1:16:56reached and the technical knowledge. It
1:16:59is invalid, that is to say, it loses
1:17:01effectiveness or is invalid depending
1:17:03on the moment, the expert opinion that
1:17:06does not have the capacity to translate
1:17:08the technical problem into ordinary
1:17:10language. Hm. So the judge will not be
1:17:15able to evaluate it if they do not do
1:17:16that translation, because if not, look,
1:17:18if not, it is the snake that bites its
1:17:20own tail. I mean, the judge says," I
1:17:22can't evaluate this because it's very
1:17:24complicated and requires technical
1:17:26knowledge. All the expertise is done
1:17:28and then the expertise leaves him in
1:17:29the same place he was, because he
1:17:30doesn't understand the expertise either
1:17:32. That's totally ridiculous. And
1:17:36there's very little work, very little
1:17:38work. It's a matter of investigation.
1:17:40Well, when the expertise fulfills its
1:17:43purpose, to put it plainly and simply,
1:17:46why do we want it otherwise? The
1:17:49expertise is not an act of magic where
1:17:51a sorcerer comes and tells us strange
1:17:54things, right? And then we say, "No,
1:17:56the sorcerer came, therefore we listen
1:17:59to him." No, that goes against the
1:18:01entire system of rational analysis of
1:18:03evidence. So what my colleague said is
1:18:06right.
1:18:08There is another question. What is the
1:18:10limit between illicit evidence and
1:18:13legitimate evidence obtained through
1:18:15private investigations and how should
1:18:18courts handle the exclusion of illicit
1:18:21evidence without affecting the search
1:18:24for the material truth? Let's see,
1:18:27there are several things there. First,
1:18:30the search for the material truth is
1:18:32the task of the accuser. If not, it
1:18:35makes no sense to call it an accusatory
1:18:37system. We call it an accusatory system
1:18:40and we believe that the judge has to
1:18:42continue investigating to find out the
1:18:44material truth of the fact. That is the
1:18:47history of the inquisitorial
1:18:49investigation, where the judge speaks
1:18:51of the obligation to seek the truth in
1:18:53order to skip the burden on the accuser
1:18:56and become the accuser himself. In
1:18:58accusatory systems, the judge has a
1:19:00position of demanding the truth from
1:19:02the accuser. It is very simple. The
1:19:04accuser has the burden of proving the
1:19:07truth. He has to seek the truth. He did
1:19:09not prove the truth. He did not meet
1:19:11the standard, sir, no. I open the
1:19:13prison. Done. Then the inquisitorial
1:19:17culture seeps in. This is the first
1:19:19thing. It certainly cannot be answered
1:19:24in general because each of the means of
1:19:26proof must be considered. All have
1:19:28conditions of legality, all conditions
1:19:30of validity. Then we have to start a
1:19:33very detailed discussion, let's say.
1:19:35Obviously, the state recording me
1:19:37illegally is not the same as a person
1:19:40who is the victim of a crime recording
1:19:42someone who is extorting them. Of
1:19:45course, they are different situations,
1:19:47they are different conditions of
1:19:49acquisition. In this regard,
1:19:51a generic answer cannot be given.
1:19:55Excuse me, we would have to look at
1:19:57each of the issues. How much? How much,
1:20:02how far do I go? That is to say, when
1:20:04we say, look, the first thing I have to
1:20:06be clear about is when this information
1:20:08is illegal, it is inadmissible because
1:20:11it was obtained through invalid means.
1:20:13And there I have all these rules that I
1:20:15told you to study case by case, means
1:20:18of proof and this has a lot of detail.
1:20:20It is a problem of, let's say, honesty,
1:20:23it is not a problem of general norms.
1:20:25Once I decide this, I'm going to have
1:20:27to take up the discussion of how far
1:20:29the nullity, the invalidity, extends,
1:20:31which is the proof of the derived
1:20:33invalidity, what the Americans call the
1:20:36poisoned fruit theory, according to our
1:20:38traditional theory it is the extension
1:20:40of the nullity. And this will depend.
1:20:43There were more serious times when
1:20:46precisely because behind all this, even
1:20:48in the old Frankfurter rulings and
1:20:51others, and in the Anglo-Saxon world it
1:20:53was clear that there was a preventive
1:20:56vocation, that is to say, the police
1:20:58abused a lot and then the judges got
1:21:00tired and said, "No, you know what? If
1:21:03we are soft on police abuse, we will
1:21:06never get out of this." Bam. And then
1:21:08they invented the fruits theory. You
1:21:10committed an illegality, you tortured
1:21:13the defendant, everything falls apart.
1:21:16There is a political intentionality
1:21:18that has to do with a more progressive
1:21:21era. Don't forget that in the United
1:21:25States, in the 50s and 60s, but
1:21:27especially the 60s, what is known as
1:21:29the era of the Warren Court, the world
1:21:32that revolves around Miranda v. Arizona
1:21:35, there was a great concern for rights
1:21:38and guarantees of admissibility because
1:21:40they were faced with, uh, a lot of
1:21:43abuse, racism from the police; it's not
1:21:46something done in the abstract, right?
1:21:49And then the conservative era came and
1:21:51they began to say, "Well, we can't do
1:21:54this much, we have too many migrants"
1:21:56and that again there is a conservative
1:21:58political movement. "If you tell me
1:22:00today in Latin America, because the
1:22:03Spanish come and say the Spanish Girona
1:22:05, we have many discussions with them,
1:22:07they say," No, don't worry so much
1:22:09about admissibility. "And there comes
1:22:12the Viking sword. I tell him," No, no,
1:22:15in Latin America, uh, the validity of
1:22:17the information. Admissibility is still
1:22:20...we are in the era of the Warren
1:22:21Court, right? We are not in another era
1:22:23where we say, "It doesn't matter much
1:22:25how I obtain the information as long as
1:22:27the judge evaluates it properly." It is
1:22:30a very dangerous doctrine in countries.
1:22:34So, our school is very strong in
1:22:37support of the conditions of
1:22:40admissibility and therefore also of an
1:22:44extensive view of nullities or the
1:22:47fruits of the poisoned tree, broad.
1:22:51Obviously, this is not a single
1:22:53doctrine nor is it a doctrine that
1:22:54arises from an abstract rationality,
1:22:56but rather it has to do with how we
1:22:58position ourselves in the face of abuse
1:23:00. Another question. How can we
1:23:04counteract that accommodating position
1:23:07of the judge who considers the sole
1:23:10testimony of the victim as support for
1:23:14a conviction, especially in matters of
1:23:17gender violence,
1:23:19right? There we have a very serious
1:23:21problem that has to do with two things.
1:23:23One, to a great extent. Today,
1:23:26throughout the region, and in some
1:23:28places like yours, we are suffering a
1:23:32great loss of professionalism on the
1:23:34part of prosecutors and the police. So,
1:23:38what one can say, well, even if one
1:23:40says, "Let's give importance to the
1:23:43victim's statements," which one can say
1:23:45, but then all the so-called
1:23:47circumstantial evidence, circumstantial
1:23:50evidence, comes into play, and no one
1:23:53would ever make a decision solely on
1:23:55the victim's statements. Hm. In other
1:23:59words, all the work that judges should
1:24:01be stricter about comes into play, but
1:24:04in a context where judges are demagogic
1:24:07or afraid, everything becomes very
1:24:09difficult. Let's say that in the face
1:24:12of demagogy, fear, or the complicity of
1:24:15judges, no theory of evidence is valid.
1:24:19Do you want me to tell you? No, not
1:24:20this. Now, if you tell me, let's start
1:24:23fighting little by little because not
1:24:25all is lost, because here I have a
1:24:27judge who can do it. Well, that's
1:24:29precisely the detailed and profound
1:24:31work that exists today on the
1:24:33rationality of evidence, which some
1:24:35feminists are also doing, who say: "No,
1:24:37no, no, not this, because no, no, no,
1:24:39this ultimately bastardizes feminism,
1:24:42which has always been based on
1:24:43guarantees, believing that it is in our
1:24:46interest for them to be convicted
1:24:48anyway." And we are going to have
1:24:50feminist doctrinaires who are also
1:24:52working on this. Let's give importance
1:24:54to the victim, but let's look at all
1:24:56the circumstances. It's not like before
1:24:59, when we used to say the victim, no,
1:25:01this woman must be crazy, she's
1:25:02exaggerating, she must have done
1:25:04something. We've gone from that to the
1:25:06other extreme. In the middle is a
1:25:08detailed consideration of the victim
1:25:10and work on the circumstantial elements
1:25:13, which is very possible. Now I need
1:25:15prosecutors who work seriously and
1:25:18judges who are not fearful demagogues
1:25:20or accomplices. What is your opinion on
1:25:25the figure of replacing the expert in
1:25:27court? This, this is an expert other
1:25:31than the one who carried out the expert
1:25:34report. How to infer their contribution
1:25:36? It is a very strange practice. I
1:25:40understand the question because a case
1:25:43happened here recently. The expert who
1:25:45has to testify in court is the one who
1:25:47did the expert report. This is the
1:25:50principle that we all uphold. If I
1:25:52understand the question correctly, in
1:25:53Cuo. Now, if you ask me how this has to
1:25:55do with the expert reports that are
1:25:57done in official laboratories, like the
1:25:59case we had recently, they say: "No,
1:26:01look, I can't go to the expert report,
1:26:03but my colleague who is in the office
1:26:05next door will go to explain it." No,
1:26:07it can't be done, it can't be done, but
1:26:11these are basic things. I mean, the
1:26:13idea seems strange that I don't have to
1:26:15justify that I have to go to trial,
1:26:17because then I have to do the
1:26:19cross-examination, the
1:26:20cross-examination, the rules of
1:26:22confrontation with the expert who did
1:26:24the expert report. How is a person who
1:26:26is part of the same body going to go?
1:26:28Let's say, I am also a forensic doctor,
1:26:29I read the expert report and I can talk
1:26:31about it. Can a thorough
1:26:32cross-examination be done? No, and
1:26:35therefore it is invalid, it does not
1:26:36comply with the control rules. If this
1:26:40is the problem, I understand it
1:26:41correctly. Let's say,
1:26:43what do you think about using
1:26:46circumstantial evidence to arrive at
1:26:49certainty without assessing objective
1:26:52evidence? No, let's see, circumstantial
1:26:56evidence is not evidence.
1:26:58Circumstantial evidence is a form of
1:27:02inductive reasoning that is very
1:27:05complex. So, let's see how they have
1:27:07constructed it. That is where there are
1:27:09many rules, that is to say, I have,
1:27:11once again, I have the problem that the
1:27:14information has been entered. There I
1:27:16have all the information. Direct
1:27:18evidence sometimes exists, but it is
1:27:20not so common. So, I have to use, and
1:27:24this is where a lot of work is done, um
1:27:28, in doing it technically and in detail
1:27:32. I am going to use the information to,
1:27:35let's say, provide a basis for
1:27:37inferential chains that allow me, like
1:27:40a ladder, to reach what is called the
1:27:43proband. Juan was there, Juan killed
1:27:45him, and I'm building that. That's a
1:27:48rational chain, a logical chain. I have
1:27:51all the logic to analyze it carefully.
1:27:55Now, in my experience, judges can make
1:27:57anything out of this. Hm. And that's no
1:28:01longer circumstantial evidence, that's
1:28:03making a decision with a shotgun blast.
1:28:05That's not circumstantial evidence or,
1:28:07uh, let's not use circumstantial
1:28:08evidence. It's the construction of...if
1:28:11you read, for example, a book like
1:28:13Rational Analysis of Evidence by Twin
1:28:16Anderson, which is in Spanish, you'll
1:28:18see the complexity of all these things.
1:28:21Today, we have very interesting
1:28:24literature on this, because in the 80s,
1:28:27in the Anglo-Saxon world, a more
1:28:30in-depth study of how to prove facts
1:28:33and analyze the rationality of evidence
1:28:36began. There you have Twining in
1:28:39English, Shum in America, Anderson in
1:28:43America, Laudan, Ronald Allen, Michel
1:28:46Pardo. A whole world that is very, very
1:28:50translated, uh, which is very, very,
1:28:54what's it called? that all of them
1:28:56rescue one of the great theorists of
1:28:58evidence from the 10th century and the
1:29:00beginning of the 20th century, who is
1:29:02John Wigmore. John Wigmore was a
1:29:04magnificent theorist of evidence, and
1:29:07these so-called new evidence studies,
1:29:10in fact, from the 80s onwards, the 90s,
1:29:12rescue a figure where also in the
1:29:14Anglo-Saxon world they had forgotten
1:29:17the facts, let's say, and had been
1:29:19trapped in the discussion of precedents
1:29:22, uh, and the facts had been weakened
1:29:24as it happens to us. So there is a lot
1:29:27to study around that, but a good way to
1:29:30start is the book*The Evidence of the
1:29:32Facts*by Tarufo, which is a book from
1:29:34the 90s that dialogues with the new
1:29:36Anglo-Saxon evidence studies, but also
1:29:39knowing the theory of Italian evidence,
1:29:41the Florians, Ócar Rar and all those
1:29:43things; so it is a super interesting
1:29:46book. I now estimate that in March I
1:29:48will release volume eight of the work I
1:29:50am working on, Criminal Procedural Law,
1:29:52which is dedicated solely to the
1:29:54evaluation of evidence. So it will also
1:29:57be useful to you.
1:29:59Alberto, I am going to read you a
1:30:01comment made by our friend and new
1:30:04academic Magali Vázquez from Caracas.
1:30:07Indeed, Alberto, given the lack of
1:30:09training, professionalism, independence
1:30:12and autonomy of judges, all the
1:30:14principles related to evidence,
1:30:16including parentheses, incorporation,
1:30:19assessment, etc., are dead letters.
1:30:22Greetings.
1:30:23Well, Magalí, we have met at other
1:30:25seminars with Magalí. A hug to Magalí
1:30:28. Well, yes, but do not despair because
1:30:31, well, all countries have gone through
1:30:35dark periods and well, then at some
1:30:38point you get ahead and when you do,
1:30:41you have to have things clear. So,
1:30:44let's say
1:30:47another greeting from Panama, Elmer
1:30:50Alberto Lescano. Increasingly, we have
1:30:54rulings issued with technical language
1:30:57that only hides the abuse of the
1:31:00executive body, where there is no
1:31:03independence and many times the lack of
1:31:06good procedures seem to take center
1:31:09stage where customary law seems to be
1:31:12the new doctrine. Greetings from Panama
1:31:15. Well, I am working intensively with
1:31:18some judges to find a way to structure
1:31:21rulings differently, because this
1:31:24administrative and procedural language
1:31:27of rulings is what most conceals
1:31:29arbitrariness. We have that and if not,
1:31:32what Jiménez de Azú already denounced
1:31:3580 years ago, which were monographic
1:31:37rulings. They issue rulings of 500
1:31:40pages, 700 pages that no one can read
1:31:43and follow, so all this is at the
1:31:45service of arbitrariness. But it is a,
1:31:48well, look, with this, no, no, I do not
1:31:51want to make banal consolation, but all
1:31:54these are fights that have been going
1:31:57on for centuries, no, no, no, they are
1:32:00not inventions of the moment. Of course
1:32:03they are like that. Note that the
1:32:05problem we have today throughout Latin
1:32:07America, throughout Latin America, more
1:32:09or less serious, regarding judicial
1:32:11independence, is very serious. Well, I
1:32:14come from Guatemala, and there are
1:32:16other places where the problem of mafia
1:32:19capture of the judiciary is very
1:32:21serious. Well, who said that we were
1:32:25magically going to have independent
1:32:28judges? Who said that? A friend from
1:32:33Barquisimeto who worked with us on this
1:32:36project since its inception asks you,
1:32:39how do technological advances such as
1:32:42artificial intelligence and data
1:32:44analysis affect the principles of
1:32:47immediacy and adversariality in
1:32:49criminal proceedings? And how can the
1:32:53fundamental rights of the accused be
1:32:55guaranteed in the face of evidence
1:32:57obtained or analyzed through these
1:32:59technologies.
1:33:03Look, the principle of adversariality,
1:33:06the principle of confrontation is
1:33:08something that cannot be waived. It is
1:33:10like the great, let's say, the great
1:33:13principle that will ultimately make all
1:33:17the others also operational. So we
1:33:20cannot renounce that. And I'm not
1:33:23saying this, Wigmond already said it.
1:33:24Wigmond said that the contradiction is
1:33:26the jewel of the system in Anglo-Saxon.
1:33:27The principle of contradiction is what
1:33:30the principle of confrontation is, we
1:33:32can never lose it. So there are no
1:33:34relativizations in this. The
1:33:36incorporation of information that
1:33:39cannot be controlled is not valid.
1:33:42Rules of confrontation are like that.
1:33:44And if someone makes a decision using a
1:33:46method that I cannot criticize, I do
1:33:48not know, or I have to know what the
1:33:50basic algorithm is in order to
1:33:51understand, it is not valid either. It
1:33:53is not valid. We can use the conditions
1:33:57here. The guarantee system is not
1:33:59concerned with the effectiveness of the
1:34:01punitive power, but with what we must
1:34:03not allow in order to defend public
1:34:05freedoms. You tell me, then we can do
1:34:08many other things. Yes. Now, in this we
1:34:11must avoid a certain conceptualism,
1:34:13because I can use artificial
1:34:15intelligence in a very productive way,
1:34:18for example, to analyze massive
1:34:20documents, for many things. But
1:34:23whenever, let's see, the principle, the
1:34:26principle of confrontation, of
1:34:28contradiction, is unrenounceable and is
1:34:31like the mark, the seal, the touchstone
1:34:34of the quality of a justice system.
1:34:38There's no going back. This could be.
1:34:44What are we going to do if I don't go
1:34:45to another system? Sure. The
1:34:48inquisitorial model allows for abuses,
1:34:51it could be more effective. Yes, but
1:34:54it's not what we want. From a
1:34:56republican perspective, there's no
1:34:58going back. Another question, how
1:35:03should a criminal judge interpret and
1:35:06assess the testimony of technical
1:35:08experts in complex areas? Oh, well, you
1:35:11already asked me that one, let me,
1:35:15excuse me, uh, yes, I think I'm
1:35:19checking here in case there's another
1:35:22one that we've missed. Well, I think
1:35:30you've answered practically all the
1:35:33questions that are read here in the
1:35:39chat and in the comments. Uh, here's
1:35:45one that says good evening. Uh, your
1:35:50dissertations are masterful, Dr. Binder
1:35:52, thank you for sharing them. Regarding
1:35:55the admission of evidence regarding its
1:35:58legality and legitimacy, what is your
1:36:00opinion and criteria regarding the
1:36:03presentation and admissibility of new
1:36:05evidence in the oral and public trial
1:36:08phase? There we have to differentiate.
1:36:12If you are telling me to admit new
1:36:14evidence for the defense, I have a
1:36:17broader view. If you are telling me
1:36:19that I am going to admit new evidence
1:36:22for the prosecution, I have a much more
1:36:24restrictive view. It will have to be
1:36:26something very exceptional, which
1:36:28sometimes happens, it is normally
1:36:30linked to some unexpected revelation,
1:36:32as long as it does not end up ruining
1:36:35the development of the trial, its
1:36:36continuity, and that it has enormous
1:36:39capacity; then I can stop the trial and
1:36:41reorganize it, but it will depend a lot
1:36:43on the position of the defense. There
1:36:46is no single criterion other than the
1:36:48defense, and furthermore, this will
1:36:50have to do with, that is to say, what
1:36:53is normally known as new evidence has
1:36:55to do with what is called unexpected
1:36:57revelations. Unexpected revelations is
1:37:00a very strict concept, it must be
1:37:02analyzed very strictly. It doesn't mean
1:37:04something the prosecutor forgot, it's
1:37:06not an unexpected revelation, that's
1:37:08simply something the prosecutor forgot,
1:37:10let's say. So, we have to have a very,
1:37:13very restrictive view. I don't know
1:37:16what to say, look, no, never, in no way
1:37:18, because there could be, I mean, the
1:37:21defense could need it because a witness
1:37:23can always raise some issue and in
1:37:25those cases, there are suspensions of
1:37:27the debate and reorganization of the
1:37:30debate. The prosecution would have to
1:37:34look at a case, because it's not just
1:37:36about the usefulness of the evidence,
1:37:39but also the usefulness of the evidence
1:37:41in relation to all the other principles
1:37:43where the trial cannot be suspended and
1:37:45so on. It has to be seen how much the
1:37:48prosecutor knew, how much diligence he
1:37:51had. That's why it really has to be a
1:37:54very exceptional and unexpected case.
1:37:57There is a comment from Venezuela that
1:38:00says, "The rule of law and justice are
1:38:03at risk and there is very little that
1:38:05can be done with this institutional
1:38:07disaster with people who lack legal
1:38:10knowledge and the only motivation they
1:38:12have is to motivate themselves not to
1:38:15lose. Work or freedom
1:38:18is a shame, but that's how it is. But
1:38:20do not despair because there are always
1:38:24people like you today, look, there are
1:38:27already people worried about these
1:38:29things, that is to say that we have to
1:38:32be prepared, as I saw someone saying
1:38:35there because dark times pass, they
1:38:38have always passed. I think Alberto, we
1:38:54have more than fulfilled the objective.
1:38:58We really, with our Judec team from
1:39:03Judec, the one that is behind the
1:39:07screen or the images, made up of young
1:39:12entrepreneurs like Daniela, Marlexis,
1:39:17Marieli and José. And on my own behalf
1:39:22, we want to thank you 267 because they
1:39:26are the people who are in the WhatsApp
1:39:29group and who were interested in your
1:39:33conference and there they are and 57
1:39:37who attended the room to hear you
1:39:40directly. What else can I say? always
1:39:44say? Thank you very much and we know
1:39:47that we will continue working on all
1:39:50these efforts where we have and have
1:39:52always had your great support, as I
1:39:55said in the opening words. Thank you
1:39:57very much again.
1:39:58No, no, thank you, it's great to see
1:40:00friends. Alfonso, we will have some
1:40:04tequeños with beer there in Merida, uh
1:40:06, but soon, sooner rather than later.
1:40:09So, if not, we will always be here
1:40:12waiting for you or we will meet up
1:40:15there. Uh, Argen, Yi, Judec: I have the
1:40:18best memories of everything we have
1:40:21done, so count on me. And also, I...I
1:40:24really enjoy these topics, so it's not
1:40:27just an obligation, but also, that we
1:40:30get together to discuss. Let me know
1:40:33and sometimes it's easy to organize and
1:40:35we put together a discussion seminar.
1:40:37So thank you very much. Of course, of
1:40:39course, of course, in addition to the
1:40:42virtual conferences we are going to
1:40:44offer courses and I don't know if we
1:40:46are giving away a scoop that is very
1:40:49much in its infancy, but
1:40:51let's let it mature,
1:40:54let people imagine it and we are going
1:40:59to go. developing expectations until we
1:41:03can achieve it.
1:41:04How about it
1:41:05for us? Of course, your collaboration,
1:41:08your support, all the people at INESP,
1:41:12well, what can we say? It has always
1:41:16been an eternal gratitude on our part
1:41:19and I feel very pleased that it has
1:41:22been this way to restart the path.
1:41:25Well, a big hug to everyone and see you
1:41:28soon. H,
1:41:29thank you, Alberto. Good night everyone
1:41:31. Yeah.

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