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Legal Information

Guatemalan Criminal Procedure*

*This information sheet is a summary of important aspects of Guatemalan criminal procedure. It is meant to assist U.S. citizens in understanding the basics of the Guatemalan judicial system. It is not intended as a guide for self-representation.

In 1994, Guatemala made significant changes to its criminal procedure. The resulting system resembles that of the United States, with some important differences. One of the most significant changes was the establishment of the adversarial system with oral trials similar to those conducted in the United States. However, unlike in the United States, a panel of judges and not a jury determines the guilt or innocence of the defendant.

Many Guatemalan lawyers are not yet accustomed to the new system of trial practice, and procedures for the introduction of evidence and the conduct of the trial are relatively undeveloped. Moreover, the Guatemalan government lacks the resources to conduct criminal investigations and trials to the standard common in the United States. Therefore, it is critically important for the accused to retain the services of a reputable attorney as soon as he or she is aware of pending criminal proceedings. While public prosecutors are available, they are often inexperienced and severely overburdened.

Steps in the Criminal Prosecution

The various stages of a criminal prosecution in Guatemala correspond roughly to those of a U.S. criminal case, including a probable cause hearing, an oral trial, and an appeals procedure. The entire process can take up to one year or more to complete.

  1. Arrest and Pre-Trial Detention. A suspect may only be detained if he or she is caught in the act of committing a crime or a warrant for arrest has been issued by a court. The Guatemalan constitution requires that all persons detained be placed at the disposition of the judicial authorities within six hours of detention and appear before a judge or justice of the peace within twenty-four hours. The defendant must be accompanied at the hearing by a defense attorney. Based on this appearance, a judge will decide whether the defendant will be detained until trial. Pre-trial detention is required for many crimes, including any crime involving narcotics. Although alternatives to pre-trial detention, such as bond or house arrest, exist (medidas sustitutivas), they are not commonly used and are not ordinarily granted to foreigners. Pre-trial detention can not exceed the shorter of one year or the amount of prison time an accused would receive if convicted of the alleged offense.
  2. Preliminary investigation. The preliminary investigation ("procedimientos preparatorios") is conducted by the prosecutor's office of the Public Ministry. In this phase, an investigation is conducted and evidence gathered. The purpose of the preliminary investigation is to determine whether sufficient evidence to believe that the accused has committed a criminal offense. The prosecutor has only three months in which to complete the investigation. The court may extend this time period if the prosecutor can show circumstances warrant an extension. A three month extension is automatically granted if the judge applies any medida sustitutiva in lieu of pre-trial detention.

    Generally, the prosecutor plays a much more active role in the investigation than in the United States. He or she interviews witnesses and closely directs the activities of the police. Most police do not have the resources or expertise to participate substantially in the investigation process. The role of the court in the investigation is limited to supervising the process and authorizing searches, seizures, and arrest warrants.
  3. Fase Intermedia. The fase intermedia is equivalent to the probable cause phase in the United States and determines whether the case will proceed to oral trial. In the fase intermedia, a hearing is conducted before a judge. The prosecution must present evidence of grounds for trial. The defense attorney has the opportunity to contest the investigation and seek the exclusion of illegally obtained evidence or coerced statements. At the conclusion of the proceeding, the judge will issue a written opinion ordering that the defendant proceed to trial or that the case be stayed (sobreseer) or provisionally closed (clausura provisional del proceso).
  4. Trial. There are two stages to the trial process: the preparatory phase and the oral trial. In the preparatory phase, the parties present lists of witnesses and evidence. Based on this information, the court issues subpoenas and takes any other actions necessary to prepare for trial. The parties also have the opportunity to present any objections or requests for recusal. The oral trial is conducted in front of a three judge panel, the tribunal de sentencia. All evidence must be introduced at this time. All witnesses are examined orally, and may be cross-examined by the opposing party. The Guatemalan constitution provides for the presumption of innocence and the burden is on the prosecutor to prove guilt beyond a reasonable doubt.
  5. At the close of the trial, the panel of judges will issue a written decision with a finding of guilt (sentencia condenatoria) or innocence (sentencia absolutoria). The decision must be supported by a discussion of the evidence presented, including a description of the witnesses' testimony, and the judges' reasons for their decision. This opinion often constitutes the only written record of the testimony and evidence presented. If the accused is found guilty, the court will also determine the sentence.

  6. Appeals. Appeals may be made at any stage of the process. Generally, appeals of a trial court's sentence are allowed only on the basis of erroneous application of the law or the legal conduct of the trial. Except under exceptional circumstances, the appeals court will not reexamine the facts of a case.

Right to an Interpreter

Non-Spanish speakers and non-native speakers are entitled to the services of an interpreter at all stages of the legal process. The defendant will have to pay for his interpreter.