Criminal Procedure Investigation Techniques

Posted on Oct 30, 2024 in Law & Jurisprudence

Lesson 10: The Content of Instruction (I)

1. Determination of Imputed Process

Object Identifier: Crime; Person.
Purpose of Process: Applying law enforcement to the individual.
Lecro 299, 777.1: The function of the preliminary investigation is to clarify the possible criminal responsibility of the event.

Any means of investigation can determine, may be initiated at an early stage (complaint, lawsuit) or as a result of later activity.
Article 373 Lecro: If there is any doubt about the identity of the accused, it will be sought to prove it by all means conducive to the objective.

2. Recognition in Wheel

Reasonably Accurate (Lecro 368): However many are directed by a certain person, they should be judicially recognized if the examining magistrate, the accusers, or the accused himself conceptualized due diligence reasonably accurate in identifying the latter with respect to the designation, so that it provides no doubt who is the person to whom they refer. Diction circuitous means that its necessity is submitted to the court’s decision, without prejudice to the proposals the parties may make.

It is superfluous when there is prior knowledge between the recognized and the recognizer. Nor is it necessarily dispositive of the ruling, both positively and negatively, either as a measure of investigation or as evidence. It governs the principle of freedom of joint evaluation and testing, with no legally privileged means.

B-Mode Realization (Articles 369 and 370)

The identification parade shall be effected by making the view of the person to be recognized appear in conjunction with other similar external circumstances.

• One for each of them, or from a point where this cannot be seen, as it proves more convenient to the Judge, who must practice recognizing clearly if the wheel is in the person or group who had been referred to in their statements, designating, if so, clearly and determinately.
• In extending diligence, it shall contain all the circumstances of the act, and the names of all who had formed the wheel or group.
• When there are several who have to recognize a person, the process expressed in the preceding Article shall be performed separately with each of them, but they may not communicate with each other until the last survey is carried out.
• When there are several which have to be recognized by the same person, they may be recognized by all in a single act.

Essential Presence: Judge, lawyer of the accused (Art. 520.2.c of the CPP requires lawyers involved in any recognition of identity that is the subject of their client), Secretary to attest to the event. The presence of the Secretary is a formal guarantee, failing to appear in court would be ratified by the participants.

Formal Statement: Identity of the recognized (if allowed to exercise the right to conflict).

Reliability Guarantees the Result: Physical similarity (build, clothing) of wheel components, which should refer to the appearance that was perceived at the time of the facts by the recognizer; independence and isolation between recognizers; lack of eye contact in the moments after earlier between recognizers and recognized; capture accurate and appropriate recognizer helps explain the degree of security, qualifying the diction clear and definitely legal.

Common and Convenient: Repeated examinations in varied situations, carrying the recognizer unnoticed (avoid victimization and intimidation), constitute a sufficiently large number (at least 4).

The rule should require their recording, without prejudice that can be carried out under the faith of the Secretary or attested in any joint trial.

C-Proof Validity

A test case of pre-constituted, it is an act, the result of perception, which is performed on a time and place, unable to play in the oral proceedings (it would be other acts). Its writing by the Secretary allowed to enter the material evidence at the trial performed by reading (730 Lecro). Normal routine to get it reproduced is valid as its outcome is not discussed by the parties.

It is debatable, given its pre-constituted nature, if the recognizer has to appear in court for ratification. The essential contradiction is the possibility of assisting the defense, so it is imperative the presence of a witness at trial if the defense calls its interrogation of alleged impossibility safe. Such ratification may not be accompanied by a reconnaissance at trial, but this does not affect the suitability of previously completed probation.

As for reliability, diligence is very important in practice, but psychologists have reiterated on numerous experiments the large percentage of identification errors committed, which are enhanced with the passage of time or the perception of the person identified after the fact (media, photo albums). The effect is constant jurisprudence that considers that the practice of such pretrial diligence does not invalidate a subsequent recognition in conference duly put into effect (STS 15.6.2000, citing the 14 March 1990, September 12, 1991, 22 January 1993, February 19 and March 6, 1997). It is valid as a vehicle to weaken the presumption of innocence, so that conviction was based solely on such evidence, but has always taken into account in its assessment the possible fallibility.

Problem: Lack of control over how to carry out, except to appear for trial the agents who carried it out. A general standard pattern would be desirable for execution or unless it was done precisely how (loneliness and lack of pressure on the recognizer; recognized pinpoint accuracy of the material). Again, film would be appropriate.

B-Identification by Photographs or Recordings of Fact

Supported by the case law (SSTS of 6 May 1993, 7 February 1994, April 6, 1994 to 5 May 1997), it has always been obtained without violating the dignity or privacy of the persons concerned.

STS 18/12/1995: Many are the possibilities or ways of conducting such footage or photographs, which can be made by individuals occasionally, by the Police in their research activities, or by those responsible for safety in any building or place, public or private.

Valid those conducted by police in public spaces, including acts carried out in the windows of the building, captured from the outside (STS 13/3/03 354).

Validity of by Private (STS 17.7.1998): Videos do not represent a separate test of visual perception, while recording does nothing but perpetuate one or more persons. It does not affect the foregoing that the filming has been completed by an individual, either in private or in the development of information work, so as to ensure its integrity and authenticity.

C) Identification by Voice

From the standpoint of evidence, the power of conviction is very difficult, for the perception of a voice may be sufficient to identify the alleged offender.

D) Fingerprint Identification

The value of fingerprint evidence to identify a person is objectively very high and rests on uniqueness and invariability.

E) Calligraphic Identification

Comparison test of graphic signs attributable to the charge of an offense with those from the defendant to determine whether they are the author of them. Very important in forgery (business documents, recipes), but are not crimes in their own hand, so it is not authorship but who has embodied the signs.

F) DNA Identification

Practically accurate markers, with a very low and negligible margin of error. Obtaining a sample of the suspect to analyze and compare with that collected at the crime scene, or in the body of the victim.

2. Processing of Hearing the Accused

This acts as a kind of defense and manages to preserve a contradictory view, so damning to the view implicit in the complaint itself against the exculpatory thesis, tentatively setting the object and allowing the process of founding the thesis upheld exculpatory or incriminating insufficiently founded, early termination of the process and avoiding trial.

B-Call Moment to Declare the Accused

When purchasing such a condition (as discussed in item 4), it is possible that this naming as a defendant, of certain stigmatizing or at least disturbing content, is delayed so that checks are carried out by the judge about the strength and seriousness of incriminating data, however it has been agreed with great caution.

The constitutional doctrine is very demanding in this regard:

STC 3/5/93 152/93: Do not subject the defendant to the scheme when, from the witness statements and the steps taken, it can easily be inferred that he is suspected of having participated in the commission of an offense, or by any means appear thus initiating the criminal process by the state inferred from the actions or have been subjected to any kind of relief or act of formal complaint (Art. 118.1 and 2 Lecro), and that the complaint should not be delayed beyond what is strictly necessary, therefore, having linked the rise of right defense to the existence of the complaint (Art. 118 Lecro), must lead to the frustration of this fundamental right if the examining judge delayed arbitrarily made known to the complaint, reason by which such performance can be estimated procedurally contrary to Art. 24 EC and thus earn the penalty trial “evidence prohibited” (Art. 11.1 LOPJ).

C-The Securities in the Statements of the Accused

• Prior Knowledge of Status of the Accused: In the event that he has been called as a witness, but he comes to realize, as we move through the interrogation, that the declarant may have been involved in criminal acts, the action must be suspended, and once informed of his rights as a defendant and attended by his counsel, start a new diligence (SSTC 19 and 51/2000 and 153/1999 and SSTS of 8 March 1996 and 5 October 1994).
• Prior Knowledge of the Facts Alleged Against Him: 118, 771.2, 775 Lecro.

D-The Practice of the Statement

Since the summary proceedings are secret and not public, instead of normal performance in closed court premises, with the presence of judge, defendant, his counsel, and legal secretary, it is undeniable that in practice it is usually omitted, being present an official written statement, although there is no legal basis for it, and, if they wish to attend, the public prosecutor and counsel for the parties people. It is of course that takes place in another setting – scene, police station, hospital, as required by the course of research.

The defendant’s statement must be made orally, but due to circumstances the judge may allow him to draft a written response in his presence to explain difficult points (Art. 390) or to consult notes, which is useful in certain cases but is not equivalent to reading statements of claims more or less relevant to the case.

The Declaration is given based on an examination of questions, which will be direct, and they will tend to research the facts and circumstances of its author (Art. 389.1) as allowing the defense of the accused (Art. 396), which by no means are allowed to make misleading or suggestive questions (Art. 389.11).

Chaired and directed by the judge, and she will be referred to the parties, except that the instruction had been declared secret. Relevance of this omission, repetition can ask in any case is not essential guarantee given that the interrogation can be done at the trial questions.

Making Time: The judge will begin the questioning, asking questions as appropriate, taking step after the prosecution and the rest of the accusations that have appeared, so they can direct questions to the accused that they deem appropriate. Eventually the floor will be to counsel’s involvement in the act, asking his client for clarification on the extremes to which had been or raise new issues that are relevant to the investigation and defense of the accused.

The corresponding record shall be lifted, containing the statements delivered by the accused himself, so that primarily or secondarily stating the judge (Art. 397), the accused can read the report or otherwise will the Secretary (section 402), signing the care all those who had participated in the act (Art. 404). This step is very important, as collateral, not normally known to be taking shape and being reflected by a fallible secretary, is rarely met, however.

The questioning should be done without pressure, without coercion or threat, in an atmosphere of sufficient fortitude for the person giving evidence, so that if the defendant shows signs of having lost the serenity of trial, the questioning will be suspended for the time needed to relax and regain composure (Art. 393).

An interpreter will be present unless the person knows and speaks Spanish, or is deaf. With formal qualifications, which in short is not accurate (762.8 Lecro). It is set for when the person does not know or speak Spanish, as a guarantee for him and other parties that someone independent and able to serve as the vehicle between him and the judge and also for the materialization of those responding to the minutes, so it is not enough in principle that the judge knows the foreign language.

E-Accused’s Statement

This is for the process, which is questioned on the facts set forth in the act of processing, although there will almost always be written documents on those facts alleged in the pretrial investigation. It may also be appointed at large with such a name to the first statement in which the accused acknowledges the facts.

5. Recognition of Events in the Instruction (Art. 406)

The confession of the accused shall not exempt the coroner from taking all steps necessary to acquire the conviction of the truth of the confession and the existence of crime. To this end, the question Magistrate will ask the accused to explain all the circumstances of the offense and which might help to verify his confession, if he was the author or accomplice, and if he knows some persons who are witnesses or who have knowledge of the general principle made.

The true prevalence of material is the search for corroboration of a self-incriminating statement. This is a fact of great probative weight, but it is understood to be sufficiently refuted by other evidence or is seen as unlikely. Obviously, such recognition, if it is listed as probable and credible attention to other data, is usually used to lighten the effect of instruction, avoiding measures that became redundant.

Summary Procedure 779.5: If the accused, assisted by his lawyer, has acknowledged the facts to legal presence, and these would constitute a punishable offense included within the limits laid down in Art. 801, immediately convene the Public Prosecutor and the parties so that people express indictment if made with the consent of the accused. If so, initiate urgent steps and order the continuation of proceedings by the procedures set out in articles 800 and 801.

The Content of Instruction (II)

1. The Identification and Preservation of the Corpus Delicti

A) Body of Crime and Components

Conjunto of material elements that are related to the crime, the identification and apprehension or conservation of which may be relevant to the research and testing (to determine the fact of its officers and the circumstances of the crime) or for securing the trial’s outcome (seizure, restitution).

With this name, or general items of evidence (688 Lecro), is encompassed:

• The corpus delicti is strictly referring to the person or thing to the notice. The body, the injured, the object stolen, drugs seized.
• Means (tools, weapons, means of transport).
• Effects coming from the crime (notably income) or where they have been transformed. According to Art. 127.1, payments are subject to confiscation unless the property of others in good faith.
• Effects in general: Testing materials, objects, traces and vestiges that is not consistent with the previous cases, are related to crime and can be used for verification of the existence, ownership or circumstances of the crime. Example: Recorded by a third party from the fact; traces of blood at the scene.

The law covers collection, description and conservation. In general rules (334 et seq Lecro) emphasizes judicial activity, that prosecution-through necessarily in the presence of Secretary and should include the MF and the parties that might have developed in-place or where found objects such data finds.

Specifically in summary proceedings, Art. 770 specifies that the Judicial Police immediately attend the scene and perform, among others, the following measures:

• Be attached to record minutes of photographs or any other magnetic medium or reproduction of the image, where appropriate to clarify the fact offense and there is a risk of missing their first sources of evidence.
• Gather and safeguard in all cases the effects, instruments or evidence of the crime of disappearance of which there is danger, to make them available to the judicial authority.
• The bureau shall, to result from the vehicle and retain the registration certificate thereof, and the driving license of the person who is responsible for the event.

As for the system law, the rule clearly provides the criteria for seizure or detention of media and effects (338 Lecro), which shall be retained by the court or by the expert body that may apply (weapons, hazardous chemicals or drugs).

The second rule does not, except in this case, unlike the embargo to civil liability, require a court to validate this possessory deprivation that may be caused by police action, as would seem necessary to be a limitation of rights of others should be founded. Yes, that is common when a court is taken not to remember.

B) Removing the Body

This is a particular form of inspection and custody of the corpus delicti. Included in the detailed description of the thing or person to the crime by the investigating judge (Art. 335 Lecro).

770.4 (abbreviated): If the death of any person were to occur and the corpse is found in the street, on the railway, or other transit area, the Judicial Police will move it to the nearest place that is most appropriate under the circumstances, restoring the interrupted service and immediately notifying the judicial authority. In situations where there are exceptional circumstances for such a measure of urgency, the position of the deceased shall be noted in advance, obtaining photographs and reporting on the exact location where he was found.

The rule is stated in imperative form, but it is proper that the police communicate the fact to the Court of Guard, who can decide whether the case requires the court to move.

It matters especially for visual inspection and reflects the situation that occurs, both of the body and of the place. This is decisive action by the specialized (scientific) Judicial Police and the concurrency of the coroner is also suitable.

2. Autopsy

The CPP mandates as a general principle that in all cases of violent death or suspected crime, an autopsy is appropriate before burial or incineration, even though the external inspection of the corpse may presume the cause of death (Article 343 in relation with Art. 340). However, this approach is substantially modified for the abbreviated process, as the judge may decide that no autopsy be performed if the coroner or his substitute can determine the cause of death without the former practice (Art. 778.4).

Delicate Procedural Question: If death is suspected of being fraudulent, prudence would indicate that the autopsy should be performed by two physicians, as the case should be or result in summary, that the experts (it is the examiner) are 2, whereas previously only 1 was needed. It is common to have one coroner perform the autopsy, and then another adhere to what his partner determined.

STS 26.4.2007 has stated that there is no substantial decline in guarantees safe from peculiarities of the case, if done by a single forensic expert.

Purpose: Determination of the cause of death using technical means, after thorough review of the external and internal aspects of the corpse. Often accompanied by toxicological and biological tests.

778.3 Lecro: The Judge may decide, when deemed necessary, that the coroner or other expert is required to obtain samples or relics whose analysis could provide the best characterization of the act and proven in the proceedings, referring them to the laboratory director to send the output in the period he may specify. While speaking of the standard of judicial authorization, it is common to perform this on the Examiner’s own initiative and then to authorize or simply cause it, and one to the auxiliary operation or autopsy report was performed by a forensic expert.

Forensics: Administration Officer of Justice expert for medico-legal purposes (Art. 344 Lecro). Progressively inserts Institutes of Legal Medicine, allowing rationalization of resources and expertise. The appointment (Lecro) contains references to proxy for other participants (before the medical APD) and is anachronistic today.

3. Alcohol Evidence

Alcohol plays a fundamental role in prevention. The Traffic Act authorizes the traffic police (state, regional or local) to carry out random checks among drivers to make sure they are not operating vehicles with levels of those substances above the permitted limits.

These tests will also be made when there has been a traffic accident or when agents externally observe that a driver is under the influence of alcohol.

The subjection to the control of alcohol or drugs is required, so that refusal is subject to criminal penalties (Art. 383 CP) and generates immediate arrest.

STC 2/10/1997, No. 161/1997 declared its constitutionality and that it does not contradict the right to defense or the right not to incriminate oneself. STS 9/12/99 nuances that only the negative criminal infringement cases or previous accident or condition external perception by alcohol are covered, not where they are purely preventive, without more elements.

In order to demonstrate the degree of influence of alcohol or drugs, there are measuring instruments, whose use is not regulated by the CPP, but by the law on trafficking, motor vehicle traffic and road safety, which in Art. 12.2 prevents the test from normally being done by checking the breath with a breathalyzer, or through blood or urine to be positive by the first measurement spirometer. There will be a second check or contrast, with a minimum interval between tests, and in view of its outcome, the analysis of urine or blood could be performed in a medical center at the driver’s request or because of an order by the judicial authority.

From these tests, if positive, the information is contained in the crowded, along with the procedure followed, the technical characteristics of the apparatus used, and any incidents or allegations that would have resulted.

The breath alcohol test or level control of the effects of the drug was not nor is proof required for criminal penalties of driving under the influence of alcohol (other relevant factors were road behavior and found that the external symptoms are recorded in the crowded), and previously it was proclaimed that the mere fact that the analysis was not sufficient, because it was required to have effects on the abilities of the subject, except in extreme cases of very high rates that are considered medically proven. Currently, subtype is essential for objectively estimating the risk for concurrent traffic safety, beating the indexes that include (s. 379.2 CP).

4. Body Inspections

A-Body or Body Searches

External recognition of a person’s body by an agent without authority or performing a physical interference in the inspection. Consideration of the external situation of the subject, feeling their clothes or examining the same, or more intense if the person being investigated is naked.

It is not conditional on prior judicial authorization; it can be done by the police’s own authority to investigate criminal offenses in the affidavit or in a purely defensive manner, as due diligence for public safety functions, although in this case, being governed by the principle of proportionality, it is arguably compatible with the absence of evidence or information concerning the specific person being investigated (STS 9.5.01 792).

B-Involvement Surveys

These involve privacy (body cavity) or bodily interventions by external elements extracting from the body or fluid, which may affect physical integrity and dignity, or the right to privacy, understood as the right to informational self-determination and biological data privacy. It is essential to have judicial approval in case of lack of consent, governed by principles of necessity and, jurisprudentially, proportionality.

A distinction is made (STS 30/10-2008, No 707/2008) between mild or severe interventions:

• Mild: When, in view of all attendant circumstances, it is not, objectively considered, that it might jeopardize the right to health or suffering for the affected person, as usually happens in the case of extraction of elements outside the body (such as hair or nails) or even some internal elements (e.g., blood tests).
• Severe: Otherwise (e.g., lumbar puncture, cerebrospinal fluid extraction, etc.). More or less strictly to the time of the authorization or even be possible without it for reasons of urgency.

C-Radiological Review

According to TS and TC, this is not an involvement of the right to privacy and therefore does not need court authorization; it is not an action to obtain the subject’s recognition of certain facts that violates their right to defense. It is not accurate to have legal counsel or instruction consequent upon detention of their rights.

5. Ocular Inspection

The examination is a means of direct research, as no material or human environment is brought between the researched and the court, and is regulated by sections 326 to 333 of the CPP.

Often indistinguishable from the general measures aimed at conserving the corpus delicti, addressed to the record for the future (sketches, drawings, graphic representation or recording – Lecro 327).

The right of the accused and his counsel to be present in the act (333 Lecro) applies, obviously, if they already had that status. Often its invocation as grounds for invalidity, but it has to prove the possible influence that this lack of presence has caused, generating material helplessness.

6. Witness Statements

A) Concept

Manifestations of persons other than the accused who can provide data through their personal perception that may be relevant to the investigation, when it comes to the preliminary investigation or prosecution to establish the facts, when performed in oral trial.

1-General Rule

It can be any natural person residing in Spain (410), irrespective of their nationality. It is a public duty whose default (failure to appear or resistance to declare) results in a fine and disciplinary action, and if repeated, forceful driving and criminal liability (463.1 paragraph 2 CP for failure to appear) or criminal liability (the crime of disobedience, for resistance to testify). Includes the injured party, whether or not they are a party to the case.

2-Exceptions

Circumstances which exempt, limit or condition the obligation to testify as a witness:

• Lack of ability to perceive, retain, or explain the facts on which the report has “physically and mentally disabled” (Art. 417.3). This does not prevent minors with sufficient criterion, disabled or impaired intellect profound sense may be called, but the need its intervention should be strong. The judge may even help doctors advice – particularly psychological or forensic – to make a decision on the ability to testify.

7. Carbo-Test

Exceptional and subsidiary (section 455). When involving minors, require expert report prior to its lack of harm. Put to the judge’s discretion on its timing and pre-existence of necessity. Conflicting statements of facts of interest. You can agree automatically or upon request from a party. Between co-defendants, among witnesses, or between one and another, between two people (Art. 451) as a criterion must be avoided in general. Intersecting threats or insults between those being examined. It exposes them to the judge the discrepancies in their statements and it is likely to give explanations or clarifications of previous statements, even talking to each other to clarify the discrepancies or possibly reach a common version of a disputed point, allowing the instrument to assess the degree of firmness or consistency of either being observed major attitude (Articles 453, 454). The Secretary keeps the minutes (section 453) but seems clearly a case of convenience of recording the event.

8. Expertise in the Instruction

Presentation of a report on facts relevant to the cause for people with special expertise “when, to know or appreciate some important facts or circumstances in the indictment, as necessary or appropriate scientific or artistic knowledge” (Art. 456).

It is apprehended by providing technical data and not lay (to know), but also and not least, his management and critical appraisal of research purposes (see). There is an aide to the judge. Essential in many cases: ballistics, toxicology, medico-legal (causality, substance abuse, trauma, ability to self-determination, medical carelessness), economic. Judicial Expertise is sorted by the judge, who determines its object.

The regulation of expertise (Lecro) is designed for quick and not very complex cases, with cuasidirimentes features, so extreme safeguards in its production. Legislation is clearly outdated and overtaken by reality. Complete discretion in determining its author by the judge, except the requirement to have the qualifications needed and not included in causes that recusación.

Habitual skills will instruct the judicial police in matters that are technically competent: fingerprinting, calligraphic, voice or image analysis, chemical, archaeological and computer crimes.

Similarly, the police in the crowded pre-judicial investigation, may carry out its review and analysis. Ex: STS 2/11/2004 1252 – in environmental crime, valid sampling and analysis by police, pretrial, then the test is performed in the plenary.

Witness Perito

Category created by LEC 1/2000, 370.4. When a witness has scientific, technical, artistic or practical knowledge of a matter relating to the facts of the interrogation, which by its residual nature (Art. 4 LEC) is being introduced in the penal field. Witness, i.e., having a personal relationship with the events under investigation and his call to process is warranted in this regard; expert, as is expertise.

Examples: Doctors who care for an injured person during her injury or during his period of healing or treating pathologies of the accused or injured from a welfare perspective, technical and administrative inspectors that perform functions (e.g., accidents or estate) on the event and who are called to process.

Other Means of Research

Video Surveillance

Regulated by Law 4/1997 of August 4, developed by RD 596/1999 of 16 April, and police activity is regulated, which is valid only within the regulatory schemes for the governing: Curious and repeated situations of lawlessness that is incurred by the very power.

Public filming is a daily activity of individuals subject to the principle of proportionality: Adequacy and minimal intervention (Art. 6).

Preventive Purpose: Existence of reasonable risk to public safety in the event of the fixed cameras, or a specific danger, in the case of mobile cameras. Its existence is publicized in areas where the devices are installed (section 9.1), without specifying their particular position.

Lawful scope 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 the administrative privacy.

Administrative Authorization: Favorable report from a committee chaired by a judge (Art. 3).

Reasons for Emergency or Inability to Obtain Authorization: Judicial Police may install mobile video cameras and report to the provincial chief of Security Forces (Art. 5.2).

Images are destroyed (Art. 8) one month after their capture, except the images that emerge from the administrative or criminal offenses by police. Contribution on its own initiative not later than seventy-two hours after he had recorded images of a possible crime, following the support of the full original recording (Art. 7.1).

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 testimony of reference through the statement of the policemen who have received their manifestations.

STS: Only valid testimony of reference when there is no access to the source of direct evidence: here there is no impossibility, but otherwise the informer will be a witness.

Only valid as a research source, which is where they can be obtained if testing can not be done-delictivo. Their manifestation is not the only source of research activities that involve an immission in fundamental rights.