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Legal Analysis: January

I Presume that Fujimori is Innocent (31 January, 2008)

            I presume that Alberto Fujimori is innocent of the charges that have been made against him. This is not the same as saying I believe that Alberto Fujimori is innocent.  Rather, I presume he is innocent.

            The presumption of innocence is a fundamental legal principle in most of the world today.  The word “presume” is defined by Webster as “to accept as true, lacking proof to the contrary.”

  Because of the presumption of innocence, the burden of proof is on the prosecution, which has to convince the court that the accused is guilty beyond a reasonable doubt.  The defense does not have to prove anything, though it may present evidence showing that there is a doubt as to the guilt of the accused.

            The Constitution of the United States does not mention the presumption of innocence, but it has been part of the common law in English speaking countries for many centuries.  In 1895 the U.S. Supreme Court declared in Coffin v. United States, 156 U.S. 432, that “the principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”

            Many modern countries have explicitly included this right in their constitutions.  For example:

In France, article 9 of the Declaration of the Rights of Man and of the Citizen (1789) says “Everyone is presumed innocent until having been declared guilty.”

In the1988 Brazilian constitution, article 5, section LVII, states that “no one shall be considered guilty before the issuing of a final and unappealable penal sentence”.

In other countries the right is set forth in their Criminal Procedure Codes.  For example:

Article 4 of the Criminal Procedure Code of Chile states:  “No person shall be considered guilty or treated as such unless convicted by a final decision.”

Article 9 of the Costa Rica Code states:  “the accused must be considered innocent at all stages of the proceeding.”

Most important for Fujimori, Article 2, Paragraph 24(A)(e) of the Peruvian constitution states:

“Every person is considered innocent until his responsibility has been judicially declared.”

            Four years ago President Vicente Fox of Mexico proposed an amendment to that country’s constitution that would provide for a presumption of innocence, but to date nothing has been done. Amnesty International recently called on the Mexican Congress to modernize their justice system in line with international human rights standards.


The right to be promptly informed (25 January, 2008)

            A couple of weeks ago at the Fujimori trial (Jan. 11), Carlos Domínguez Solis, chief of the National Counter-Intelligence Service in July, 1992, at the time that businessman Samuel Dyer was kidnapped by the police, testified that in cases such as Dyer’s kidnapping, “the arrested person should not be informed of the reason for his arrest.”  Is he right?

            Most people assume that the police must read you your rights when they arrest you, including the reason you are being detained.  The truth is, however, that there is nothing in the Constitution or the laws of the United States that require the police to immediately tell you why you are arrested.  Under the Miranda decision, you must be informed of your right to a lawyer and your right to remain silent, but the Supreme Court only said this must be done before being questioned by the police.  The Sixth Amendment to the U.S. Constitution says you have the right to be informed of the nature and cause of the accusation against you, but doesn’t say WHEN.

            In many countries the law makes it very clear that the police must promptly tell you why you are being arrested.  For example, Article 22 of the Constitution of India guarantees the right to be informed “as soon as may be” of the grounds of arrest.  Under Article 94 of the Criminal Procedural Code of Chile provides that when a person is arrested he or she must be told, “specifically and clearly, the reason for the detention, unless caught in the act, and must be shown the Order that provided for it.”  The Canada Supreme Court ruled that “at a minimum, individuals who are detained for investigative purposes must be advised, in clear and simple language, of the reasons for the detention.”  R. v. Mann, 2004 SCC 52

            Peru also included this right in its 1993 Constitution, adopted at the urging of then President Fujimori.  Article 139, Clause 14, states clearly and succinctly:  “Every person shall be informed immediately and in writing of the cause or the reasons for his or her detention.”

            In addition, General Domínguez Solis also forgot that there is an international treaty that answers this question and is binding on Peru.  The ICCPR (International Covenant on Civil and Political Rights), which was ratified by Peru in 1978, provides that “Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.”  This treaty was also ratified by the United States in 1992, though with the “reservation” that it does not create any right to sue the police if it is not followed (this has been called a “fraud” by international law experts).  A key purpose of the requirement for information about the reasons for arrest or detention is to allow detainees to challenge the legality of their detention. 

            This right clearly was not given to Mr. Dyer, who was held for five days in a military jail without ever being told why.  The law is clear in Peru that this was illegal.  And the General finally admitted during his testimony that Dyer was kidnapped because of an order given by President Fujimori and processed by his advisor, Vladimiro Montesinos.


Hearsay Evidence (24 January, 2008)

         Last Monday the judges in the Fujimori trial spent most of the day listening to hearsay evidence.  Two newspaper reporters testified about what they were told by various members of the Colina Group, which allegedly abducted and killed leftists during the Fujimori administration.

         The idea of using hearsay evidence in a criminal trial is shocking to lawyers in the United States, England, Canada, Ireland, Australia, and the other common-law countries.  “The hearsay rule excludes evidence of statements made out of court by a person who is not a witness at the trial, if the purpose of the evidence is to prove the truth of the statement,” said Julian Burnside, a barrister in England. “The Anglo-Australian legal system has, for several centuries, excluded hearsay evidence,” he continued.  “The reason for excluding hearsay evidence is simple: the truth of the statement cannot be tested unless the person who made the statement is called to give evidence and can be cross-examined.”

         Ricardo Uceda, a reporter for the magazine Sí and the newspaper El Comercio, also wrote the book “Muerte en el Pentagonito – The Secret Cemeteries of the Peruvian Army” based on what a member of the Colina Group told him.  On Monday he testified in court about what this anonymous person told him – that Fujimori had no advance knowledge of the killings at Barrios Altos and La Cantuta. 

         Edmundo Cruz, a reporter for Sí and the newspaper La Republica, testified that three members of the Colina Group told him the Group was a unit composed of teams of the Army Intelligence Service and directed by Vladimiro Montesinos, with Fujimori’s knowledge.

         Clearly, this testimony was given for the purpose of proving the truth of what the out-of-court persons said.  It would not be admitted as evidence in any English-speaking court.  The theory of the rule against hearsay is that assertions made by human beings are naturally unreliable.  It therefore becomes necessary to subject such forms of evidence to “scrutiny or analysis calculated to discover and expose in detail its possible weaknesses, and thus to enable the tribunal (judge or jury) to estimate it at no more than its actual value” (Wigmore on Evidence §1360).  There are three tests calculated to expose such weaknesses:  First, we require that such assertions be taken under oath;  Second, we require that such assertions be made in front of the tribunal;  Third we require that such assertions be subject to cross-examination.

         According to the United States Supreme Court, when statements are directly accusatory, the defense needs an opportunity to explore the accuser’s motives. Where statements are the product of police interrogation, there is a need to ensure that the testimony is not the product of improper coercion or intimidation.  Crawford v. Washington, 541 U.S. 36 (2004).  There are some 24 exceptions to the hearsay rule, but none of them would have applied to the testimony on Monday.

         However, the rules for admissibility of hearsay evidence are more relaxed in court systems based on the civil law system (South America, Europe, and most of the world).  In the civil law system, the courts, whether consisting only of judges or featuring a jury, have wide latitude to appreciate the evidence brought before them.  Especially when the judges are trained lawyers, as here in Peru, they presumably have the ability to evaluate the reliability of evidence and give less value to hearsay statements unless they are corroborated by other evidence.  In fact, the President Judge at Monday’s hearing made a skeptical gesture on one occasion when the witness was relating DOUBLE hearsay (the witness said what his source said was told to him by someone else). 

         The importance of the day’s evidence was given different interpretations by Peruvians.  The headline in the newspaper Ojo said it had “sunk” Fujimori, whereas La Razon bannered “Accusation against Fujimori Buried!”   One of the lawyers called the testimony “of medium to low importance” while another said it was “very important”.

Kidnapping (23 January, 2008)

There has been a lot of discussion during the Fujimori trial about kidnapping.  Witnesses are asked if they can define the difference between kidnapping and detention.  Fujimori’s lawyer has argued that there were no kidnappings by the police or the military, there were simply unauthorized detentions. He denies the existence of any pattern of kidnappings of Fujimori’s political opponents.

The former president is accused of ordering the kidnapping of Gustavo Gorriti Ellenbogen on April 6, 1992, and of three other people on other dates.  Gorriti was allegedly seized at his house by personnel of the Army Intelligence Service (SIE), brought in a vehicle to the SIE facilities, and transferred to the basement.  He remained in one of the rooms until the next morning, when he was sent to the police headquarters.  Was this a kidnapping by SIE, and was the ex-president behind it?

Last Friday we heard some very powerful testimony by Jorge del Castillo, who is now Peru’s Prime Minister.  He told in gripping detail about soldiers surrounding the house on April 5, 1992, throwing him to the ground, hitting and tying him up, covering his head with a ski mask, and taking him somewhere to a room.  He was held incommunicado for five days and was then released.  He testified that “they almost killed me on April 5th.  It was a very violent thing.  ‘Detained’ is when a policeman comes and takes you to the police station.  I was violently captured, beaten, hooded, tied up, and, under threat of death, taken to a military barracks and isolated.  My perception was that they were ‘disappearing’ me.”

Even though the kidnapping of Jorge del Castillo is not one of the charges that Fujimori is facing in this trial, his testimony on Friday went a long way toward establishing the prosecution’s claim that the other kidnappings were part of a larger pattern.  In fact, the witness showed the judges an order signed by General Nicolas Hermoza ordering the detention of several unnamed persons “by order from above”, and the only person above Hermoza was Fujimori.

Peru’s Ciminal Code defines kidnapping as follows:  “Whoever, without right, cause, or justified power, deprives another of his personal liberty, whatever may be the motive, the purpose, the means or circumstances, or the time that the victim suffers the deprival or restriction of his liberty, shall be sentenced to not less than ten nor more than fifteen years.”  If the victim is a civil servant, public employee, or diplomat, the sentence is 20 to 25 years.

There can be little doubt that Jorge del Castillo was “kidnapped” by the military.  The prosecution has the burden of proving, beyond a reasonable doubt, that the other kidnappings, as well as the murders at La Cantuta and Barrios Altos, were planned and ordered by the defendant, Alberto Fujimori.


Cross Examination (19 January, 2008)

            One of the reasons for an oral trial, with witnesses present, is the right of cross examination of each witness.  According to the U.S. Supreme Court, this right is a requirement of due process.  John Henry Wigmore, the great legal expert, said that “doubtlessly, cross examination is the best machine invented by the law for discovering the truth.”  [5 Wigmore, Evidence, p. 78]   Charles McCormick, another expert in the United States regarding the law of evidence, said the following:  “For two centuries, common law judges and lawyers have considered the opportunity to cross examine an essential safeguard of the truthfulness and completeness of testimony, and have insisted that the opportunity be more than a privilege, that it be a right.”    [McCormick on Evidence, p. 78] 

            Judge Cory of the Canada Supreme Court said the following in the case of Regina v. Osolin[1993], 4 S.C.R. 595:  “There is no doubt about the importance of cross examination.  It is essential in determining if a witness is credible. . . .  It can provide the means to explore the weaknesses of the testimony.  For example, it can demonstrate a defect of vision or of hearing of a witness.  It can establish that time conditions limited the capacity of the witness to observe, or that the medication that the witness took could have distorted his vision or hearing.  One cannot deny its importance.  It is the best method to demonstrate truth and to examine truthfulness.  The opportunity to cross examine witnesses is fundamental in providing a just trial to the accused.”

              Cross examination, in the common law tradition, means the use of leading or suggestive questions.  “Isn’t it true, Mr. Witness, that on the 5th of April you were present at that meeting?”  Yes or no.  The lawyer, when cross examining, should be in charge of the courtroom, and not allow the witness to simply repeat, at greater length, the direct testimony he or she gave when questioned by the lawyer who called him or her to testify.  A good cross examiner can force witnesses to say things and admit things they did not intend to disclose, or can show that the witness is lying or hiding the truth. 

            The lawyers at the Fujimori trial have seldom employed this type of cross examination while I have been observing.  They generally ask open-ended questions, allowing the witnesses to give long answers.  Defense attorney Nakasaki has shown the most ability in this regard, often asking “Isn’t it correct that . . . .?”

     However, when General Dominguez was called to testify as a prosecution witness last week, it was the prosecutor who asked leading questions! 

            The best cross examination, strangely, has come from the judges.  All three of them usually question the witnesses after the lawyers are done, asking leading questions and at times showing disbelief at some of the responses.  They often interrupt the witness’ testimony; at one point the Chief Judge interrupted Mr. Fujimori while he was giving his comments following a witness’ testimony. The lawyers can hardly object to a judge’s questions, though Mr. Nakasaki did so when one of the judges started questioning a witness after questioning was over, but Nakasaki’s objection was overruled.  There is no provision in the procedural code for any re-direct or re-cross examination, even though new information may have been presented in the witness’ responses to the questioning by other lawyers. 


The Courtroom (17 January, 2008)

            The Fujimori trial is being held in a newly constructed air conditioned courtroom located (for security purposes) inside a military base on the east edge of Lima.  Attendance is closely regulated and is not open to the general public.  One must past through a series of security checkpoints, submit to a metal detector, and give up all cell phones, cameras, keys, and pointed objects (except pencils or pens).  There are 56 seats in the spectator section, and one must sit in his or her assigned seat.  The judges have a chart so they know who is watching.

            There is a wall (mostly glass, presumably bullet-proof glass) between the spectators and the rest of the courtroom.  At the front is a large table, behind which sit the three judges.  Each judge has a laptop (notebook) computer in front of him.  Prominently displayed on the desk (sometimes blocking one’s view of the center judge) is a 15 inch crucifix with Jesus hanging on the cross.  Beside the crucifix is a very large Catholic bible on which witnesses place their left hand while swearing to tell the truth (after being asked if they are Catholic).  One witness last week who stated that he was an evangelical Christian did not place his hand on the Catholic bible while taking the oath.

            To the judges’ right (our left) sits the prosecutor, José Antonio Paláez Bardales, with two assistant prosecutors behind him.  To the judges’ left (our right) sits defense attorney Cesar Nagazaki and two or three assistants.  In front of the judges (with his back to us) sits Fujimori.  These arrangements are mandated by Peru’s Criminal Procedural Code (Article 235).  The witness sits to the judges’ immediate left.

            Next to the prosecutors are three long tables with three lawyers at each table.  These are the nine lawyers for “the civil party”, which means the human rights organizations that represent Fujimori’s alleged victims.  Unlike common law countries, Peru allows victims to present their claims and participate as parties in the criminal case.  In theory, judges can rule in favor of the defendant if the criminal charges are not proven beyond a reasonable doubt, but in favor of the victims if they are proven to be more likely than not, as happened in O. J. Simpson’s two trials in California some years ago.  In practice, this rarely if ever happens in Peru.

            Also crowded into the courtroom are three video cameramen who keep their cameras on the speakers; a still photographer; three or four guards and a policeman; an assistant for each judge; and a secretary who constantly writes in her desktop computer.  The assistants and guards frequently walk back and forth behind the judges.

            The spectators are arranged like fans at a sporting event.  On the left, facing the prosecutors and the lawyers for “the civil party”, are the families of the victims and representatives of human rights organizations.  On the right are Fujimori’s family and supporters.  Behind them are several chairs for international observers, all but one of them empty (I am the only international observer at this point in the trial).  Signs are posted telling us not to smoke and to maintain silence, and assuring us that this room is a safe zone in case of earthquakes.  Normally we must stay seated, except that we must stand up when the judges enter and while witnesses take the oath.  Fujimori’s family and friends also stand up when he enters the courtroom.

            Beside the courtroom is a large room for general spectators who have been granted permission to be there.  There are seats for 160 spectators, about 75% of which are occupied each day.  Two movie-sized screens show what is going on in the courtroom next door.  There is a separate room for the press, where 6 or 8 journalists sit writing their dispatches on desktop or notebook computers. PRAXIS is represented by a Peruvian lawyer, Ana Maria Vidal Carrasco, who attends the trial every day and writes the trial reports for this web blog. 


Initial impressions (15 January, 2008)

            A visitor who is not familiar with courtroom procedures in South America will notice many surprising and unusual features at the trial of Peru’s former president Alberto Fujimori.  I will mention a few of them today, and will have more to say about them in future entries.

            This is an oral trial, with witnesses being examined and cross-examined by lawyers.  Many of the countries in Latin America have changed in recent years from the Spanish Inquisition (or inquisitorial) system to an oral system similar to the common law countries (England and its former colonies, including the United States).  Under the prior system the judge was in charge of the criminal investigation, then filed the charges against the accused, and then decided guilt or innocence after reading all the reports and listening to the lawyers’ arguments.  The judge normally did not hear the testimony of witnesses. 

            Unlike many other Latin American countries, Peru changed to the oral trial system many years ago (in 1939).  There is a prosecutor who is in charge of investigating the case, bringing the charges, and presenting the government’s witnesses in court.  There is a defense attorney, and if the defendant cannot afford to hire an attorney a public defender is appointed.  It is an adversarial system, not the old inquisitorial system.

            There is no jury.  Instead there are three judges who hear the evidence and decide the case by majority vote.  But instead of acting as passive arbiters or referees who simply listen to the evidence produced by the lawyers, in Peru the judges take an active part in questioning the witnesses.  They ask questions to clarify the testimony, but also use standard techniques of cross-examination to try to wring the “truth” from the witnesses.  This is very surprising to visitors who are schooled in the common law system.

            In addition to the prosecutor, the defense attorney, and the judges questioning the witnesses, in Fujimori’s trial there are at least nine attorneys for the civil parties.  These attorneys represent human rights organizations or alleged victims of the defendant, and they all can question each witness.  In addition the defendant himself is allowed to comment after each witness finishes.

            Witnesses are permitted to give hearsay testimony, stating what they were told by persons who are not present in court.  In addition to stating what they believe are the facts, witnesses are permitted to give their opinions about the ultimate issues.  One witness last Friday, for example, opined that Fujimori was a dictator and a traitor to his country, and other witnesses were asked to speculate about why government officials acted as they did.


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