21 steps to trial and secrecy of justice

Madeleine Beth McCann went missing from PDL in Portugal on the 3rd May 2007, there are so many unanswered questions, please discuss

Re: 21 steps to trial

Postby Shrike » Fri May 02, 2008 6:17 pm

Thanks for explaining about the Jane Joe and Zoe. Had me searching all over the place for the elusive threesome!

Good to see "13 – The judge can deny requests that are obviously not necessary to discover the truth and/or have as purpose the delay of the process." - although I note your caution regarding the flexible term 'obviously'.

Terrific thread. Everyone should read your introductory post. Thank you, SS.
'We know our facts, we know what we did.' Gerry McCann

"The issue is, does this judicial secrecy help the investigation in any way? We would say not." Clarrie McSpin, May 08
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Re: 21 steps to trial

Postby Shrike » Fri May 02, 2008 6:44 pm

I do have a question for you, SS, about Robert Murat. Should the PJ have no reason to be he is involved in the crime, whatever crime that may be, would they release him from his arguido status, or would that mean the end of the judicial secrecy, partially or altogether?
If they do believe him to be uninvolved, is there another reason to keep him arguidoed? What inference if any can we draw from the fact that he is still an arguido?
'We know our facts, we know what we did.' Gerry McCann

"The issue is, does this judicial secrecy help the investigation in any way? We would say not." Clarrie McSpin, May 08
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Re: 21 steps to trial

Postby bootie2 » Sun May 04, 2008 1:30 am

Stinky Sardine,
Thanks that finally I can understand this process. And do you think the recent pleas by the McCanns for anyone and everyone with any information to come forward would be them planning for a possible instruction stage?
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Re: 21 steps to trial

Postby pear » Sun May 04, 2008 4:08 pm

bootie2 wrote:Stinky Sardine,
Thanks that finally I can understand this process. And do you think the recent pleas by the McCanns for anyone and everyone with any information to come forward would be them planning for a possible instruction stage?


They will have 4 months for that, in all legallity. But yes, it can very well be their reason. That, or lean on the witnesses :)
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Re: 21 steps to trial

Postby StinkySardine » Mon May 05, 2008 8:25 am

Shrike wrote:I do have a question for you, SS, about Robert Murat. Should the PJ have no reason to be he is involved in the crime, whatever crime that may be, would they release him from his arguido status, or would that mean the end of the judicial secrecy, partially or altogether?
If they do believe him to be uninvolved, is there another reason to keep him arguidoed? What inference if any can we draw from the fact that he is still an arguido?


Well shrike. Murat would be de-arguidoed at the end of the first stage, as charges would been brought and the case against him would be filed. If that is the case, he cannot remain an arguido. Only if charges would be brought. He could still be a witness, though.
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Re: 21 steps to trial

Postby bohhee » Thu May 08, 2008 2:26 pm

SS
Are we further up the steps now that the re-interview is over. What's next step before charges?
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Re: 21 steps to trial

Postby nemo » Fri May 09, 2008 7:45 pm

but what about political interference?
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Re: 21 steps to trial and secrecy of justice

Postby beachy » Wed May 21, 2008 8:18 pm

This is the OP from a thread I started a few weeks ago called "So, Why Haven't They Been Charged Yet?" Someone PMed me and asked me to help them locate it, so I thought I would just bring it here and add it to SS's thread, since it relates to the judicial process in Portugal.

There are, obviously, several possibilities for why charges have not already been laid in this case:

(1) There may not be sufficient evidence. Personally, I believe that if the PJ can prove that Madeleine is dead, regardless of whether or not they can prove HOW she died, they probably have enough evidence to support a charge of negligence resulting in her death. But we do not know what they have, and I do not believe that press reports can be relied on, so that one is wait-and-see.

(2) These things take time. As I have posted before and PMed someone again just the other day: I once had a very similar case involving the disappearance of a 3-year-old boy that took fully two years to solve. If we are still sitting here a year from now waiting to see if charges will be filed, I will be wondering, but not before.

(3) We are dealing with a legal system that has some significant differences from what we are used to in the UK and America; filing a charge as soon as there is evidence to support a criminal prosecution and then amending the charges later if necessary is not the way they normally do things in Portugal. I think this is the most likely possibility, and I shall elaborate on it below.

First of all, everyone who has not already read Stinky Sardine's excellent post, "21 Steps to Trial" should go to the pinned messages on the forum and read it at once. I think it is the best explanation we will probably ever see about what is involved in a criminal investigation in Portugal.

There are two different types of legal systems in western democracies: the common-law system in use in the UK, America, Canada, Australia, and New Zealand, and the civil-law system used by most of the countries on the continent of Europe. In this sense, "civil" does not mean "as opposed to criminal" as it does in the UK, but civil as in Code Civil des Francaises, or Code Napoleon, which served as a sort of template for legal/judiciary systems that developed on the Continent of Europe. There are far more people living in countries which use civil-law systems akin to Portugal's than there are in common-law countries.

For anyone who wants to do a bit of in-depth reading about the history of civil-law systems and how they operate, there is an excellent paper on the subject called "A Primer on the Civil-Law System" which was prepared in the mid-1990s under the aegis of the Judicial Conference of the United States; if the McCann case results in charges, in addition to Stinky's post, I think you will find it quite useful, especially the section on the criminal phase of a case that appears on p. 28. The report can be found at the following URL:
http://www.au.af.mil/au/awc/awcgate/fjc/civil_law.pdf

There are three phases of any criminal investigation under a civil-law system: the investigative phase, the instruction phase, and the trial. The Madeleine McCann case is still in the investigative phase, and as SS (sorry, I can't bring myself to keep calling him Stinky) points out to us in "21 Steps to Trial," the case is now under the direction of the Public Prosecutor of Portimao (Jose Cunha Magalhaes e Meneses, and another experienced prosecutor, Luis Bilro Verão, who has been brought in to assist). The public prosecutor's office, also as SS points out to us, can delegate investigative responsibilities to the PJ, which apparently Mr. Magalhaes e Meneses and Mr. Verão have decided to do. (If someone wants to see the system operating in the manner common in some countries, in which the public prosecutor conducts the investigation himself, I would suggest renting the movie "Z," a first-rate film based on the true story of a political assassination that occurred in Greece.) In civil-law systems like Portugal's, the prosecutor's office is much more involved in the details of the investigation than, say, the CPS in the UK or a U.S. Attorney's office or district attorney's office in the U.S. would be. It is during this phase of the investigation that a written record of the case will begin to be created. This written record is extremely important to the case.

It is the public prosecutor who decides whether the evidence in the case justifies the filing of formal charges.

Once this first phase of the investigation is completed, the case will enter what is referred to as the period of "instruction," which will last about 4 months. At this point another individual, judge of instruction Pedro Frias, will take over the case. He will continue to add to that important written record and will play an active role in interviewing witnesses, including those suggested by the McCanns; there is, however, no cross-examination of witnesses in civil-law systems. The defendant(s) may be questioned but have the right to remain silent and to be represented by counsel throughout the proceedings. As a result of the information gathered in the instruction phase of the case, the judge of instruction can decide either to close the case against the defendants or allow it to proceed to trial; this is an opportunity to have the charges against him dropped which the defendant does not have in a common-law system.

If Judge Frias allows the case to proceed to trial, the case will enter its final phase. Judge Frias will NOT be one of the trial judges. A trial in Portugal would be significantly different from a trial as we are used to them in the UK or US. Some of the differences include:

(1) There will be no "Perry Mason" moment. A great deal of the case will be based on the written record which has already been put together, which is very, very important under a civil-law system and which will be available to both the prosecution and defence before the trial begins.

It is because of this written record, I think, that under civil-law systems the prosecution is careful about when charges are filed. In the UK and America, you can charge someone early on, knowing that if further investigation indicates that additional charges are appropriate, it is simply a matter of filing some paperwork; the whole thing is going to be fought out at trial anyway. Under a civil-law system this is considerably more complicated, as starting from ground zero to include new charges in a written record which is already well on its way to completion would be a considerably more difficult matter. Obviously there will be situations where the public safety is involved and the suspect must be got off the street as soon as possible (example that comes to mind: suspect holding smoking gun caught standing over victim), but in many cases the civil-law system lends itself to completion of the investigation and a thorough review of all the evidence before charges are filed.

(2) A panel of three professional judges will hear the case. There is no guarantee of a jury trial under Portugal's constitution. For certain serious offences, a jury trial may be granted. If so, the jury will be small - composed of four citizens. In deciding a verdict, the three judges and four citizens will vote as a group. Conviction requires a simple majority.

(3) Trials under civil-law systems are certainly not designed to be love fests, as one is talking about a proceeding which can deprive a defendant of liberty for a long time, but neither are they designed to be as adversarial as they often are under common-law systems. This, combined with the fact that much of the case depends on the written record, reduces the value of on-your-feet lawyering and therefore can have the effect of somewhat diluting the advantage of a high-priced legal team at this stage of the proceedings. I have seen posts (usually by non-Portuguese posters, if memory serves) saying that prosecutors in Portugal generally will not file charges unless they are certain of a conviction. Well, not exactly. I am sure they won't file charges unless they are convinced they have sufficient evidence to prove that a crime has occurred, but I don't think it is ever possible to predict what will happen during a trial, particularly one with a citizen jury.

I don't know if this gives anyone any sort of hope or not. What I hope it does is explain that, even more than in the UK and US, criminal investigations in Portugal are not like what we see on television. It can be a considerably more lengthy process than what most of us are used to. Having seen the process in common-law systems misfire badly, as I think many other people here have also done, I don't believe one can say that one system is better than the other. They are just different, and each has its strengths and weaknesses.
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Re: 21 steps to trial and secrecy of justice

Postby Dreyfus » Fri May 23, 2008 2:13 pm

Excellent explanatory post, Beachy. Thanks
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Re: 21 steps to trial and secrecy of justice

Postby Dreyfus » Fri May 23, 2008 2:23 pm

Beachy, as a layperson, I would say the thing I think will disappoint a lot of UK / US people on here is the lack of cross-examination. What a lot of us really want to see and hear is Gerry sweat and squirm under the scrutiny of a sh*t-hot prosecuting barrister, and because of the procedure in the PT judicial system, I don't think we're going to get that.

The civil system trial – or inquisitorial system trial to use another term – can be dissatisfying to someone used to the common law / adversarial system. A European trial can seem a bit of an anti-climax – as if you've turned up late for a play in the theatre and only caught the final act, while all the action happened before the interval.

The non-professional legal person doesn't seem to get the satisfaction of their "day in Court".
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Re: 21 steps to trial and secrecy of justice

Postby pear » Fri May 23, 2008 2:31 pm

Dreyfus wrote:Beachy, as a layperson, I would say the thing I think will disappoint a lot of UK / US people on here is the lack of cross-examination. What a lot of us really want to see and hear is Gerry sweat and squirm under the scrutiny of a sh*t-hot prosecuting barrister, and because of the procedure in the PT judicial system, I don't think we're going to get that.

The civil system trial – or inquisitorial system trial to use another term – can be dissatisfying to someone used to the common law / adversarial system. A European trial can seem a bit of an anti-climax – as if you've turned up late for a play in the theatre and only caught the final act, while all the action happened before the interval.

The non-professional legal person doesn't seem to get the satisfaction of their "day in Court".


Of course, there is cross-examination: from both parties AND the judges.
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Re: 21 steps to trial and secrecy of justice

Postby Dreyfus » Fri May 23, 2008 3:20 pm

pear wrote:
Dreyfus wrote:Beachy, as a layperson, I would say the thing I think will disappoint a lot of UK / US people on here is the lack of cross-examination. What a lot of us really want to see and hear is Gerry sweat and squirm under the scrutiny of a sh*t-hot prosecuting barrister, and because of the procedure in the PT judicial system, I don't think we're going to get that.

The civil system trial – or inquisitorial system trial to use another term – can be dissatisfying to someone used to the common law / adversarial system. A European trial can seem a bit of an anti-climax – as if you've turned up late for a play in the theatre and only caught the final act, while all the action happened before the interval.

The non-professional legal person doesn't seem to get the satisfaction of their "day in Court".


Of course, there is cross-examination: from both parties AND the judges.


Pear, the point I was picking up on was Beachy's statement "
there is, however, no cross-examination of witnesses in civil-law systems."
I took it to mean "close questioning of a hostile witness" - i.e. a witness from the opposing side, so while a judge might question or interrogate a witness but he can't cross-examine in one sense as technically he isn't on the other side.

But you are right that cross-examination can also mean questioning "Designed to test the accuracy and veracity of a witness's statement."

If the statement by Beachy is incorrect (and my understanding has always been that cross-examination is rare under the European inquisitorial system) then I am happy to be corrected and hear about it.

In the McCann case, when would the prosecuting counsel have the chance to cross-examine the McCanns on their statements? Would it be just in the final trial stage or also in the instruction stage?

If cross-examination isn't allowed in the instruction stage by the Prosecution (not just by the Judge), how can the judge be satisfied he is aware of all the facts if he decides there is not sufficient evidence to proceed to trial?
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Re: 21 steps to trial and secrecy of justice

Postby StinkySardine » Fri May 23, 2008 5:46 pm

quote="Dreyfus"]

Pear, the point I was picking up on was Beachy's statement "
there is, however, no cross-examination of witnesses in civil-law systems."
I took it to mean "close questioning of a hostile witness" - i.e. a witness from the opposing side, so while a judge might question or interrogate a witness but he can't cross-examine in one sense as technically he isn't on the other side.

But you are right that cross-examination can also mean questioning "Designed to test the accuracy and veracity of a witness's statement."

If the statement by Beachy is incorrect (and my understanding has always been that cross-examination is rare under the European inquisitorial system) then I am happy to be corrected and hear about it.

In the McCann case, when would the prosecuting counsel have the chance to cross-examine the McCanns on their statements? Would it be just in the final trial stage or also in the instruction stage?

If cross-examination isn't allowed in the instruction stage by the Prosecution (not just by the Judge), how can the judge be satisfied he is aware of all the facts if he decides there is not sufficient evidence to proceed to trial?[/quote]

Dreyfus,

The systems are more similar than you might think. Although quite interesting, the previous posts fall into the error in considering that the case relies heavily on written files than on the trial and the judges.

That is not so.

All proof have to be done in court. Obviously, when necessary, making the due remissions to evidence in the case files. The written records (with reports and all) are more necessary to the pre-trial phase. For all necessary action and for the trial judge to know them, of course, but everything has to be at least reconfirmed in trial.

In the trial, the prosecution will start with opening statements. The defense will make their opening statements. Then the prosecution will introduce their witnesses, whiich are then cross-examined by the defense. During that time, the judge is free to ask what he/she might think is necessary to get to the truth of the facts.

It is not an adversarial system inasmuch it is not considered a you vs. me, but rather the judges, with the help of the prosecution services aiming to find the truth. This is a very important principle. In practice, at court, with the prosecution and defense lawyers, it does seem a little bit like 'LA Law', but pt judges are more interventive because of their slighly different role. Lawyers insult each other, insult the police, the prosecution insults the defense, the judges tells them all to shut up... the whole works...

Other things. 1. Defendants don't plead guilty or not guilty. 2. DFefendants can intervene at any time, make any statements under obvious restrictions that it has to do with the case, they cannot insult, etc...

The number of witnesses is limited and is previously analysed by the college of judges. There are limitations to the use and quantities of character witnesses.

At the end, the prosecution and the defense will close their arguments and the judges will subsequently:

1. Analyse which facts are considered as proven and which aren't
2. Given the proven facts -if any - the defendant is to considered in breach of the law
3. Proof also serves to prove intent, knowledge, consequences, liability, imputability
3. Sentence accordingly

So there really is not that bigger difference, IMMHO...
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Re: 21 steps to trial and secrecy of justice

Postby pear » Fri May 23, 2008 7:40 pm

Just one very minor correction: as far as I know, the last one to speak IS the defendant: if he wishes to say anything in his or her own defense, the judges will listen to what he/she has to say.

Edit: sorry, I misread you, Stinky. So the correction is even more minor!
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Re: 21 steps to trial and secrecy of justice

Postby StinkySardine » Fri May 23, 2008 9:10 pm

pear wrote:Just one very minor correction: as far as I know, the last one to speak IS the defendant: if he wishes to say anything in his or her own defense, the judges will listen to what he/she has to say.

Edit: sorry, I misread you, Stinky. So the correction is even more minor!


:wink:

Bom fim de semana, pêra!
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