Liz Gudis, law student with the International Human Rights Clinic at The George Washington University Law School, Washington, D.C., USA
Before going into my reflections about the trial, I would like to thank all the people at APRODEH and PRAXIS who made our trip to the Fujimori trial possible. I would also like to thank Ana Maria Vidal Carrasco from PRAXIS and the law students from San Marcos University for increasing the value of our experience by sharing their views of the trial with us and engaging in an interesting and informative dialogue about the theories of the trial and the differences in our justice systems. We learned a great deal and enjoyed being able to meet you all.
As a law student from the United States, one of the things that struck me most was how the procedural differences of a civil legal system compared to the U.S. common law system affect the events of the trial. One difference is that there is no jury (of the defendant’s peers) to decide the facts and weigh the probative value of the evidence, rather it is the judges who decide the issues of fact. Because the judges themselves evaluate the evidence, there is not the same concern that exists in American courts for judges to shield certain pieces of evidence from a jury. This is because a jury could be unfairly prejudiced or confused by certain pieces of evidence presented by the parties which would result in an obfuscation of the truth rather than shed light on it. Therefore, when a witness refers to testimony previously given by a different witness, this would not be admitted in a U.S. court because the witness himself did not give or hear the testimony first hand, and the jury would not be able to fairly evaluate the truth of the witness’s statements. Here, as I learned, the judges have the experience to be in a position to evaluate the veracity of the witness’s statements, and determine whether he is telling the truth.
Another interesting difference is that the judges determine the order the witnesses are called. To the U.S. observer, this at first seems odd, because in the U.S. system the prosecution and defense each call their witnesses in the order that he or she believes best explains the story each side wants to present about why the defendant is or is not guilty. Having viewed the trial, I can see why it makes sense that the judges, as the finders of the truth, call the witnesses in the order that allows them to best determine the truth of what happened. It seems to provide flexibility to the judges because they are able to call a witness they think will best explain a particular aspect of the case, rather having to hear two sides of a story and then just decide which side is more convincing.
While watching the trial, I was also surprised when the judges began to directly ask the witnesses questions. This was quite puzzling to me at first because in all of my previous court experiences in the U.S. the only time the judge became actively involved in the case was to discuss aspects of the case with the lawyers and decide on issues of law raised by the attorneys in the proceeding. Here, the judges are able to directly ask the witness questions and seek clarification about statements the witnesses have made and I can now see how this best fits with the role of judges as the finders of fact. The judges need to be involved and ask the witness questions directly because that helps them evaluate the truthfulness of the witness and how best to weigh his testimony when deciding the case. A judge is not bound to merely listen to strategic questions asked by the prosecution and defense that puts their side in the best light, but rather, allows them to follow-up on issues they do not feel best expound the truth. An example of this was when Judge San Martín questioned Silva Mendoza about his knowledge of the Colina Group to try and determine how truthful Silva Mendoza was being when he claimed that “the left hand did not know what the right hand was doing.” The power to question witnesses directly provides the judges an important tool that corresponds to their power to determine the truth of the facts presented in the case.
Being able to attend the trial was an incredible opportunity to see first-hand that Peru attempts to hold anyone who violates the laws responsible, even if that someone is a former President. Without being able to watch the trial in person and talk to Peruvian lawyers and law students about it, I would never have been able to so thoroughly understand the differences in our systems. I saw how the prosecutor and the lawyers for the victims worked to break down the inconsistencies in Silva Mendoza’s testimony and were able to use the government’s documents to help them show how Silva Mendoza was part of the chain between the Colina group and Fujimori. I left the trial feeling inspired by the work of the lawyers and judges because even though this case carries with it great burdens, it shows that there is an even greater interest in learning the truth about what happened and holding those responsible — no matter what their position — accountable to the people for their actions.
It is clear that the Judges in this pivotal trial have a great responsibility to ensure the truth of what happened is clear, and although the procedures differ from those this outsider is used to, it is apparent that the Judges are using the power given to them in the Peruvian system to their best advantage to find the truth and ensure that those responsible will be brought to justice.