Criminal Procedure: Key Terms and Concepts

Posted on Dec 3, 2024 in Law & Jurisprudence

Preliminary Investigation

Key Aspects of Preliminary Investigations

  1. Institution of Investigation: A preliminary investigation of criminal acts may be instituted based on legal grounds, charges, or accusations.
  2. Prosecutor’s Time Period for Organized Crime: The appropriate public prosecutor has 96 hours to investigate a defendant involved in organized crime offenses.
  3. Right to Counsel: Any person providing evidence based on their knowledge of the facts may be accompanied by an attorney or a trusted individual.
  4. Voluntary Surrender Time Limit: The public ministry has 48 hours to bring a voluntarily surrendering defendant before a court.
  5. Preservation of Evidence: To verify the corpus delicti and prevent the alteration or loss of evidence, the public prosecutor orders expert analysis.
  6. Judicial Police Detention: During the investigation of an offense, detention by the judicial police is authorized by the Ministerio Público (Public Ministry).
  7. Detention Limits for Minor Offenses: In preliminary investigations for crimes with a maximum prison sentence not exceeding a certain threshold, the accused shall not be held in regular detention facilities.
  8. Forfeiture of Bail: The prosecution can seize the bail deposited by the accused in cases of serious offenses.
  9. Evidence in Murder Cases: In murder cases where the body is found, witnesses may be used to establish the existence of the crime.
  10. Body Identification: Body identification will always be conducted through autopsy and fingerprint analysis.

True or False

  1. If the corpus delicti is established but not the probable guilt of the accused, the preliminary inquiry is sent to the court. False
  2. If the corpus delicti or probable guilt is not proven, the inquiry ends with a non-exercise of action order. True
  3. The preliminary investigation aims to establish the corpus delicti, probable responsibility, and ultimately, the punishment. True
  4. The complainant has 24 hours to appeal a non-prosecution decision to the state attorney general. False
  5. The attorney must resolve the appeal within 20 days. False
  6. The decision rendered by the attorney can be appealed. False
  7. The judge has 96 hours to receive the initial statement of an organized crime defendant. False
  8. If the judge’s order is deemed invalid, the arrest must be immediately ratified. True
  9. If detention exceeds the constitutional limit, the detainee’s statement is invalid. True
  10. The defendant is informed of their bail eligibility during the preparatory statement. True

Time Limits and Procedures

Time Limits in Criminal Proceedings

  1. Filing a Case (Non-Serious Offense): The court has 3 days to file a case without arrest if the offense is not considered serious.
  2. Decision on Prosecutor’s Hearing (Serious Offense): The judge has 30 days to decide on a hearing requested by the prosecutor for serious offenses.
  3. Arrest Warrant Decision (Serious Offense): The judge has 72 hours to decide on an arrest warrant for serious offenses.
  4. Filing a Preliminary Investigation (Serious Offense): The court must immediately file a preliminary investigation for serious offenses.
  5. Resolving Accused’s Legal Status: The judge has a specific time limit to resolve the legal status of an accused person.
  6. Criminal Background Check: The director of identification and expert services has 5 days to provide the judge with a criminal background check.
  7. Defendant Appearance for Fingerprinting: The defendant is given 5 days to appear for fingerprint identification.
  8. Post-72 Hour Detention: The director of the social rehabilitation center has 3 hours to wait for the judge’s imprisonment order after the 72-hour constitutional limit.
  9. Sentencing (Maximum Penalty Under Two Years): The judge has 4 months to sentence a defendant if the maximum penalty is under two years.
  10. Prosecutor’s Findings: The public prosecutor generally has 3 days to render findings in a process.

Bail, Procedures, and Detention Orders

Bail

Bail allows a person considered likely responsible for a crime and awaiting trial to obtain liberty by providing sufficient security to ensure they do not evade justice. This benefit applies to non-felonies and requires compliance with specific requirements. Bail can be in the form of a mortgage, cash amount, or deposit covering:

  1. Reparation of damages
  2. Prevention of escape from justice
  3. Payment of potential fines

Mortgage Requirements: Real estate offered as bail must be free of encumbrances and have a surplus value exceeding potential damages.

Regular vs. Summary Procedure

Regular procedures apply to standard cases, while summary procedures are expedited processes for urgent disputes. Summary trials are faster but may limit the defendant’s right to defense due to the focus on a quicker resolution.

Requirements for a Detention Order

Within 72 hours of the accused’s appearance, a judge can issue a detention order if:

  1. The accused’s preliminary statement has been taken, or their refusal to testify is documented.
  2. The corpus delicti is proven, indicating a custodial sentence.
  3. Probable liability of the defendant is demonstrated.
  4. No defenses or conditions extinguishing the criminal action are fully verified.
  5. The order includes the judge’s and secretary’s names and signatures.

Content of a Detention Order

A detention order should include considerations, results, conclusions, and general data.

Judicial Inquiry and Time Limits

  1. Order of Imprisonment: The judge’s order determines the process for the accused, which may differ from the prosecutor’s provisional classification.
  2. Non-Corporal Punishment: If the crime doesn’t involve corporal punishment, the judge’s decision within 72 hours is called “subject to process.”
  3. Judicial Inquiry: The formal process starting with imprisonment, where the judge examines evidence to prove the crime and the defendant’s responsibility, is called the judicial inquiry.
  4. Instruction Closing Time (Maximum Penalty Two Years): If the maximum penalty is two years, the instruction closes within three months.
  5. Instruction Closing Time (Maximum Penalty Over Three Years): If the maximum penalty exceeds three years, the instruction closes within ten months.