I have always wondered exactly how it worked. Mexican law is based on Napoleonic Law, and before that, Roman Law. It is, I have found, an urban legend that in Mexico you are presumed guilty until proven innocent. But if the Public Ministry finds there is enough evidence (and that is a big presumption in the way things work), you will sit in prison while not evidence but “testimony” (sometime coerced) is collected, so a judge can decide by himself/herself whether you are guilty, half guilty.
Or innocent.
Napoleonic Law as practiced in Mexico does not—and I am not a lawyer—does not provide enough protections for the defendant. The accuser(s) can add to existing “evidence” and that evidence in the form of statements accumulates under loose and often incompetent controls. 80 days is supposed to be the legal limit for what is called arraigo, detention without charge. There are many problems with arraigo here in Mexico, and in other countries. There is much room for mischief.
From p. 25 in the fine study done at the University of San Diego, “Detention Without Charge” https://justiceinmexico.org/detention-without-charge-now-available/#.ViQK5m6RHP8.facebook:
“Perhaps the government could not offer a clear requirement (around arraigo) because there is none to be found in either the criminal code or the (Mexican) Constitution. In the prosecution phase of criminal proceedings, the MP (Ministerio Público) has the burden of proving guilt, but with arraigo there is no mention of reasonable suspicion, probable cause, clear and convincing evidence, or proof beyond a reasonable doubt. This lack of a clear standard of required proof makes judicial review for reasonableness impossible.”
You can read more about my visits with my friend at sterlingbennett.com
Here is the clearest explication I’ve seen yet.
By way of Mexico Voices (http://mexicovoices.blogspot.mx/)—an English translation of the article “Mexican Judicial Institutions Don’t Know How to Investigate Crimes” from the Mexican weekly Proceso, by Sara Pantoja.
“Mexico City – The Ayotzinapa case (the forced disappearance of 43 students) revealed that Mexico’s law enforcement institutions are not prepared to investigate, and legal case files* are put together not [based] on scientific evidence, but in complete dependence on formal legal statements [by detainees and witnesses].”
Footnote to the article translation by Mexico Voices’ Jane Brundage: “Mexico’s criminal justice system is very different from the U.S. system based on Common Law, where criminal cases are tried before judge and jury, with witnesses questioned and cross-examined in open court. Derived from the Napoleonic Code and Roman Law, criminal proceedings in the tradition of Civil Law are carried out primarily by means of documents submitted to the court, respectively, by the Public Ministry performing its prosecutorial and investigative functions, and (the same for) the Defense Team. The Judge reviews these documents (compiled in a formal legal file, expediente) in private, then issues a series of orders, rulings and resolutions. The Judge’s first orders ground each document in the applicable law, organized in two documents: Penal Code and Federal Code of Criminal Procedures.
When the legal file is complete, the Judge analyzes the documents in the formal legal file (which can run well in excess of 500 pages) in order to determine the Final Resolution of the case: guilt or innocence.”
My friend Don Coulter added a point I should have made (how the law is supposedly changing) in a Comment, which I quote here in full.
While the footnote by Jane Brundage is accurate, I’m surprised she didn’t point out that Mexico is in a period of transition toward a criminal-justice system more similar to that of the United States. I quote from an article on insightcrime.org earlier this year:
“Mexico is in the midst of implementing criminal justice reforms passed in 2008, substituting inquisitorial court trial proceedings–in which trials are conducted mainly through paperwork and defendants have few opportunities to communicate directly with a judge–with oral-based, accusatorial proceedings more akin to those employed in the United States. The objective is to bring greater transparency to court proceedings, as well as to expand the rights of the accused and institute the presumption of innocence until proven guilty.
“However, the rollout of the reforms has been slow: only four states have completely made the switch, while 25 have made partial changes. All 31 states plus the federal district are expected to implement the reforms by June 2016.” (http://www.insightcrime.org/news-briefs/experts-warn-of-challenges-to-mexico-s-judicial-reform-rollout)
Don Coulter continues: I would add that I think it’s extremely unlikely that the reforms will be fully in place by next June. And even if they are, they will hardly put an end to the institutional incompetence and corruption that plague all levels of Mexican government. One can only hope they’ll be the start of a long-term reform effort.
Sterling continues: A good companion piece to “The Difficulty with Mexican Crime Investigations” might be the September 30, 2015 New Yorker article “Mexico’s Missing Forty-Three: One Year, Many Lies and a Theory That Might Make Sense,” by Francisco Goldman. Mexico, the author suggests, may never have seen the likes of the evidentiary narrative constructed by the team of highly respected independent foreign investigators that been looking into the case. A new forensic model Mexicans may want to adopt.