Criminal Investigation Procedures and Evidence Handling
Lesson 11: The Content of Instruction (II)
1. Identification and Preservation of Corpus Delicti
A. Body Parts and Crime Conviction
The corpus delicti encompasses material elements related to the crime. Its identification, apprehension, and preservation are crucial for investigation, testing (establishing facts and circumstances), and securing trial outcomes (seizure, restitution).
The term generally covers:
- The person or thing subject to the crime (e.g., body, injured party, stolen object, seized drugs).
- Instruments (tools, weapons, transport).
- Effects derived from the crime (e.g., proceeds) or their transformed versions. According to Article 127.1, proceeds are subject to confiscation unless belonging to bona fide third parties.
- General effects: Testing materials, objects, traces, and vestiges not covered above but related to the crime, usable for verifying existence, ownership, or circumstances (e.g., third-party recordings, blood traces).
The law mandates collection, description, and conservation. General rules (Article 334 et seq.) emphasize judicial activity, requiring prosecution presence, along with the Secretary, Public Prosecutor, and involved parties, for on-site or subsequent documentation.
This approach can be anachronistic and dysfunctional. Security forces (police) typically collect evidence, instruments, and effects (Article 292). Specifically, in summary proceedings (Article 770), Judicial Police immediately attend the scene and:
- Attach photographic records or other media relevant to clarifying the offense if there’s a risk of losing evidence sources.
- Collect and safeguard effects, instruments, or evidence at risk of disappearance.
- Retain vehicle registration and driver’s license if applicable.
Regarding the legal system, the rule provides criteria for seizure/detention of media and effects (Article 338), retained by the court or expert body (e.g., weapons, chemicals, drugs). This applies to the corpus delicti, with return to claimed owners rejected (Article 367), preventing third-party claims. However, victim protection (Article 13) often involves returning the body or object after documentation (description, photographs). Return is usually as a deposit, with the obligation to retain it for trial and potential final return after sentencing. This refund is a form of civil liability ex delicto (Article 110.1), decided by the verdict.
Unlike civil liability embargo, court validation for possessory deprivation caused by police action is not required, except for victim returns. This limitation of rights should ideally be founded, though court validation is common.
Article 367 bis addresses all goods brought to justice, seized during proceedings. Subsequent articles regulate:
- Destruction (leaving samples) if necessary due to the nature or danger of the seized property, after hearing involved parties.
- Immediate destruction of toxic drugs, narcotics, or psychotropic substances (retaining samples for further tests), after hearing involved parties.
- Early realization of lawful commerce effects, after hearing the concerned person, if non-incriminating and not required for the procedure, in cases of perishability, abandonment, high storage costs, health/safety risks, depreciation, or owner’s request without statement.
For realization requested by the prosecution or State Attorney, the judge must agree unless the request is unfounded or would cause irreparable damage. This may include delivery to non-profits, realization by specialists, or public auction, with proceeds paid to the court.
Special rules exist, notably Article 374 of the Penal Code, regarding the use of property seized by judicial police in drug trafficking cases.
Incriminating evidence must be forwarded to the court (Articles 622, 626), examined by the prosecution and parties during qualification (Article 654), and presented at trial (Article 688) for witness recognition (Article 712) and court examination (Article 726). Non-appearance is a failure, often the responsibility of legal secretaries (Article 459 LOPJ).
In dismissal or temporary release cases (Article 635), objects are returned to their owners, with provisional detention if civil action is announced. In default cases (Article 844), effects are returned to non-responsible third parties. After conviction, third-party domain is determined (Article 996).
B. Removing the Body
This involves specific inspection and custody, including detailed description by the investigating judge (Article 335). Article 770.4 mandates Judicial Police to move a body found in a public place to a suitable location, restoring interrupted service and notifying the judicial authority. In urgent situations, the deceased’s position must be documented (photographs, location). While imperative, police should communicate with the Court of Guard, who may decide on court involvement. Visual inspection of the body and scene is crucial, requiring specialized Judicial Police and coroner involvement.
2. Autopsy
The Criminal Procedure Code requires autopsy in violent or suspicious deaths before burial/cremation, even if the cause seems apparent (Article 343, 340). However, in abbreviated processes, the judge may waive autopsy if the coroner determines the cause (Article 778.4). In suspected fraudulent deaths, two physicians should perform the autopsy (STS 26.4.2007).
The autopsy’s purpose is to determine the cause of death through internal/external examination. Drug/biological testing often accompanies it (Article 778.3). While judicial authorization is mentioned, examiners commonly perform tests and seek subsequent authorization.
Forensic experts (Article 344) conduct autopsies. Legal Medicine Institutes are increasingly involved. Corpse removal, data reconciliation with CSU, and proper handling are common. Autopsies also occur in apparently natural deaths without certified causes. Second autopsies with party-appointed experts are exceptional, based on Article 471 and 467.2, but cannot restrict the examiner’s direction.
The judge or secretary’s presence at autopsy (Article 353) is inapplicable; absence doesn’t invalidate it. Coroners must ratify findings and answer questions at trial unless results are undisputed and accepted as documentary evidence.
Injury monitoring is also relevant. Legislation (Article 350 et seq.) is obsolete. Injured parties are summoned for forensic examination, with reports requested from treating doctors. The defense can request expert examination if reasonably necessary.
3. Alcoholic Test
Alcohol tests have a fundamental preventative function. Traffic law authorizes random checks by traffic police. Tests are also mandatory after accidents or if drivers exhibit signs of intoxication. Refusal is a criminal offense (Article 383 CP), leading to arrest. STC 2/10/1997 declared this constitutional. STS 9/12/99 nuanced this, limiting criminalization to refusal after accidents or visible intoxication, not purely preventative checks.
Breathalyzers, blood, and urine tests determine alcohol levels. Two tests are performed if the first is positive, with a minimum interval. Results are recorded in police reports. While previously insufficient alone, positive tests now constitute an offense if exceeding permitted limits (Article 379.2).
Guarantees include approved equipment, two tests, and subject information. STC confirmed no lawyer is required, as it’s a justified temporary restriction. Evidence articulation involves agent testimony and subject contradiction, with the latter’s potential memory issues.
4. Body Inspection
A. Body Searches
External body recognition by agents, including feeling clothes or examining a naked person, requires prior judicial authorization, except for in flagrante delicto offenses or defensive actions for public safety (proportionality principle applies). STS 9.5.01 792.
B. Invasive Surveys
Surveys involving body cavities or bodily interventions (extractions) affecting physical integrity, dignity, or privacy require court approval (necessity and proportionality principles). STS 30-10-2008 distinguishes between mild (e.g., hair, nail, blood samples) and severe interventions (e.g., lumbar puncture). Article 363.2 and Third Additional Provision 10/2007 address biological evidence procurement and judicial intervention for invasive actions.
C. Radiological Review
According to TS and TC, this doesn’t involve privacy rights and doesn’t require court authorization. It’s not considered an action obtaining recognition of facts violating defense rights.
5. Scene Inspection
Direct research method (Articles 326-333), often indistinguishable from corpus delicti preservation measures (sketches, recordings, Article 327). The accused and counsel have the right to be present (Article 333). Absence must cause demonstrable material helplessness to be invalidating.
No judicial proceeding is required. Police typically document inspections during investigations or later upon court order. Documentation is ratified and subject to contradiction at trial. Expert involvement is common (e.g., police fire reports).
Judges may order event reconstructions (Article 328, 329), potentially simultaneous with expert presence or witness interrogation.
6. Witness Statements
A. Concept
Statements by non-accused individuals providing relevant data through personal perception, during preliminary investigation, prosecution, or trial.
1. General Rule: Any natural person residing in Spain (Article 410) has a public duty to testify. Breach (default or resistance) results in fines, disciplinary action, forceful driving, and criminal liability (Article 463.1, disobedience).
2. Exceptions:
- Exemptions/Limitations: Lack of capacity (physical/mental disability, Article 417.3); dispensation for direct-line relatives, spouses, siblings, and second-degree relatives (Article 416), extendable to similar affective relationships (STS 134/2007, 20.2.2008). Omission after warning violates Article 24.2, protecting individual liberty and family solidarity. STS 101/2008 clarifies warning isn’t mandatory for initial police contact, only after notitia criminis. Witnesses can testify if desired, but misrepresentations about relatives are liable due to potential impartiality issues. Article 418 allows not answering specific questions causing harm to relatives. Lawyers are waived due to confidentiality (Article 416.2), extendable to other professionals (Article 199 CP, Articles 542.3, 543.3 LOPJ). Clergy are exempt for ministry-related information (Article 417.1). Civil servants/military are exempt for duty-related information affecting secrecy or obedience (Article 417.2, Article 198 CP).
- Absolute Exemptions: King, Queen, consort, Crown Prince, Regent, diplomatic agents, and their staff/families (treaty-based).
B. Witness Determination
Article 421: Named in complaints, statements, or procedures; anyone with relevant knowledge. Irrelevant/useless citations are omitted based on relevance and usefulness.
C. Location
Generally, the instructor’s court premises. Exceptions (written statements): Royal Family members (Article 412.1); political/legal authorities for position-related events (Article 412.2). Home/office statements (Article 413): Authorities for non-position-related events; those listed in Article 412.5 (e.g., Deputies, Senators, Judges). Other locations: Physical inability/emergency (Articles 419, 430); residence outside jurisdiction/abroad (judicial assistance, videoconferencing optional, Article 325); scene inspection (Article 438.1).
D. Statement Format
Individually, before the judge, registrar (Article 435), and potentially parties, lawyers, and cited individuals. For children (Article 433), the State Attorney, parent/guardian (unless charged), and optionally experts are present. Recording is possible. Initial questions cover identification, relation to the accused/parties, and criminal record (Articles 436, 785.3). Oath/affirmation is required. Written data aids memory. Object recognition is possible (Articles 437, 438.2). Judges only interrupt for clarification. Parties question afterward. Leading questions, coercion, deception, etc., are prohibited. Interpreters are used if needed. Minutes are read. Address changes must be reported.
E. Advance Testimony
Article 448: If a witness anticipates trial absence (duty, death risk, impairment), the accused’s counsel is notified. A new statement is taken with the accused, lawyers, prosecutor, and parties present. For minors, confrontation is avoided using pictures and technology (extendable to other situations). Article 777.2 allows advance testimony for various reasons, documented with audio/video recording. Important for foreign trafficking victims.
F. Witness Protection
LO 19/94 regulates witness (and expert) protection due to reprisal fears. Measures include identity masking, police protection, court transport, and exceptionally, new identity/relocation.
G. Aid to Victims
Act 35/95 provides administrative support to victims of violent intentional crimes resulting in death, serious injury, or psychological harm, and sexual offenses. Interim aid is available. Victims must be informed about this aid.
7. Carbo
Exceptional subsidiary measure (Article 455), requiring expert reports for minors. Judge’s discretion applies. Used for conflicting statements (Article 451). Threats/insults are avoided. Discrepancies are presented, explanations are sought, and attitudes are assessed (Articles 453, 454). Minutes are kept (Article 453), recording is advisable.
8. Expertise in Instruction
Reports by experts (Article 456) provide technical data and critical appraisal, aiding the judge. Essential in areas like ballistics, toxicology, and economics. Judges determine the object of expertise. Lecro regulations are outdated. Judicial Police often handle technical matters (e.g., fingerprinting, computer crimes). Public institutions and professional associations are also consulted. Parties can submit expert reports, especially during trial. Lecro allows two experts in summary proceedings, one in abbreviated proceedings. Experts have witness-like responsibilities (Articles 462, 463). Objections arise if trial recognition/reporting is impossible. Parties can name additional experts (Article 471). Procedure involves expert appointment, report submission, ratification, and questioning. Experts must appear at trial (Articles 723 et seq.), except for undisputed reports. PPA 788.2 allows documentary evidence for official laboratory reports on narcotics, extendable to other official expertise if undisputed.
Expert Witness
LEC 1/2000, Article 370.4: Witnesses with relevant scientific/technical expertise. Examples include treating doctors and inspectors. Not objectionable as witnesses.
9. Other Means of Research
Video Surveillance
A-Regulated by Law 4 / 1997 of August 4, developed by the RD 596/1999 of 16 April and police activity is regulated, which is valid only within the regulatory schemes for governing: Curious and repeated situations of lawlessness that are incurred by public power itself.
-Filming the daily activities of persons subject to the principle of proportionality: Adequacy and minimal intervention (art. 6): preventive Purpose: The existence of reasonable risk to public safety in the event of the fixed, or a specific danger In the case of mobiles.
Publicises its existence in areas where the devices are installed (section 9.1), without specifying its location
It is lawful immission area of fundamental rights to honor, family privacy or image itself (art. 2 LO).
It concerns public places: the need for judicial authorization when it could affect privacy.
Prior administrative-favorable report from a committee chaired by a judge (art. 3)
Emergency reasons or inability to obtain authorization: Judicial Police may install mobile video cameras and reported to the provincial chief of Security Forces (art. 5.2).
“Images are destroyed (art. 8) per month of their capture, except the images that emerge from the administrative or criminal offenses.
Contribution by the police on their own initiative not later than seventy-two hours after he had recorded footage of a possible crime, following the support of the full original recording (art. 7.1).
B-1 is a different question placement of cameras for research purposes. It was expressed (LESSON 10.3.B) that does not require court approval if the recording happens in public spaces or areas not constitutionally protected, it is accurate when recording inside a home or area of privacy
2 – When it comes to individuals, case law referred to must be a chance finding, but no consolidated doctrine of willful particular site to reflect a possible crime. The protection of rights to self-image, the principle of proportionality and the state monopoly of the functions of research (unless regulated private research assumptions that do not involve public offenses) should prevent indiscriminate recording.
The images are considered as personal data under the means: a) Personal Data: any information concerning an identified or identifiable natural person.
LO 15/1999y art. 1.4 RD 1332/1994 of 20 junioque regarded as personal data graphic or photographic information, requiring compliance with installation requirements or rules on right of access to pictures, administrative or economic sanctions in case of default by prohibiting the recording of public spaces unless it is necessary for security.
THE police informer
Police knowledge-sources that are not articulated as oral evidence.
“They are a source of direct evidence (not testifying): hazardous for disposal as confidant and source of future information and there may always deny its informal manifestations.
“They can be an indirect source, as a reference testimonials by the declaration of the officers who have received their manifestations: STS: Only valid testimony of reference when there is no access to the source of direct evidence: there is no impossibility here but otherwise the informer will be a witness.
-Only valid as a research source, which is where obtainable if the evidence of the offense.
“It is not that their manifestation is the only source of research activities that involve a immission in fundamental rights.
STS 17/12/2007, No. 1047/2007
This mention of the informers requires to be clarified and refined, whichever appropriate, as they did other judgments of this Court, as of 26 September 1997 – that in the preliminary phase of their investigations, police use multiple sources of information: citizen collaboration, their own research and even information provided by collaborators or police informers. The doctrineECHR case law has recognized the legality of the use of these confidential sources of information, provided it is used exclusively as research tools and have no access to the process as evidence of guilt (Kostovski Judgment of 20 November 1989, Case Windisch, of 27 September 1990).
It would, however, that establishing an additional constraint. It is not enough to exclude the use of “confidence” as evidence of guilt, to ensure adequate protection of fundamental rights. It is also necessary to exclude only direct evidence for the adoption of measures restricting fundamental rights. It is recalled that the confidence can hide a vengeance, self-exculpation, personal gain, etc.. And the old Brocardo that “he who hides his face to acknowledge, is also capable of hiding the truth in what they charged. It is for this reason that the mere reference to “confidential” can not serve as sole basis to request for limiting fundamental rights measures (entries and searches, wiretaps, detentions, etc..), And therefore decisions court adopting such measures,except cases of necessity exceptionalism (imminent and serious danger to the life of a kidnapped person, for example). The reported information should lead to police efforts to check its veracity, and only if confirmed by other, less doubtful, can then apply those measures.