Comparing Our Criminal Justice System to Mexico’s

Last week, I had the opportunity to help provide training to Mexican criminal justice professionals. The training included Mexican police, prosecutors, and forensic experts from multiple jurisdictions. I learned a great deal, and thought I would share my impressions briefly for those who are interested.

The former Mexican system. Mexico’s criminal justice system used to be very different from ours. The old system has frequently been described as a “mixed inquisitorial” system, situated generally in the European civil law tradition, yet with many distinctive features. Police were mainly dedicated to crime prevention, like security guards, not to investigation. Prosecutors directed investigations and questioned witnesses. Prosecutors also filed and prosecuted cases. Cases were decided by judges based primarily on written affidavits. Oral testimony subject to cross-examination was rare. Defendants were routinely incarcerated pretrial, and the presumption of innocence and the right to counsel were both weak.

The current Mexican system. In 2008, Mexico undertook a major reform of its criminal justice system. The reform was mostly complete by 2016. The current system is an adversarial system, similar to ours, with oral trials featuring live witness testimony and cross-examination. Pretrial release is more common and the presumption of innocence has been strengthened. Police have been given an expanded role, with more investigative duties. Prosecutors are correspondingly more focused on advocacy. This article by Professor David Shirk provides a detailed overview of the reform. A shorter summary by The Economist is here. This article argues that the reforms have been effective but are in jeopardy amidst claims that they lean too far towards the defense.

Observations from the training program. During my time at the training program, I encountered several differences between our system and the post-reform system in Mexico:

• We generally use juries to determine guilt or innocence in serious cases, but Mexico uses a panel of three judges.
• Our courtrooms generally have a public gallery, but many Mexican courtrooms are so small that there is little public space.
• While many Americans have reservations about the efficacy and fairness of our justice system, the situation is far more severe in Mexico, where in one survey, a lowly 6% of respondents expressed confidence in the system.
• While not every crime in the United States is reported to authorities, Mexicans’ lack of confidence and their fear of police corruption lead to truly staggering underreporting of even very serious crimes.

Despite these differences, there were moments when the two systems seemed fundamentally alike. For example, one prosecutor contended that Mexico was unique in that Mexican prosecutors carried large caseloads, dealt with officers whose reports were often late or incomplete, battled defense attorneys who sometimes had unreasonable expectations about case outcomes, dealt with complaints of “revolving door” justice, and were compensated with little respect and inadequate pay. I won’t deny that Mexico is unique, but the challenges that she mentioned are no doubt familiar to prosecutors here in North Carolina.  And I strongly suspect that Mexican police officers, defense attorneys, and judges would also have a familiar set of complaints, if asked.

Takeaways. I left very impressed with the professionalism and enthusiasm of the Mexican officials. Several were commuting long distances, while others used lunch breaks to keep up on work. They seemed to appreciate the training program, took it seriously, and were willing to try things that aren’t customarily a part of Mexican trials, like using a theme to unify an opening statement or conducting mock witness examinations to prepare a witness for trial. If criminal justice reform succeeds in Mexico, it will be because of the efforts of professionals like the ones that I met there.