Arts. 410 and 420 LECrim
The duty to appear and testify
All residents must appear at the judicial summons and state what they know about what they are asked. Unjustified non-appearance is punished with a fine of 200 to 5,000 euros and can constitute obstruction; the second summons allows forcible conduction. What is not possible is to treat the investigative statement as reproduced through mere non-appearance without exhausting the conduction (doctrine of art. 730): if our key witness resists, we request the conduction; if the prosecution’s witness does not appear, we oppose the reading, because adversarial examination is not presumed.
Arts. 411 and 412 LECrim
Absolute exemptions and appearance privileges
The King and certain authorities are exempt from testifying or from appearing, with special regimes of written statements or statements at their official office: fixed exceptions that are not extended by analogy. The practically relevant tool is the videoconference of art. 731 bis, which cannot become the rule for uncomfortable witnesses without justified cause: immediacy remains the standard and its sacrifice requires reasoning.
Art. 416 LECrim
The family and professional dispensation
Dispensed from testifying are the spouse or de facto partner, ascendants, descendants and siblings of the investigated person, as well as their lawyer regarding facts known in the defence and translators regarding those communications. After LO 8/2021, the dispensation does NOT reach the victim constituted as private prosecution nor, among other cases, where minors or persons with disabilities must be protected. The judge must give the warning; its omission invalidates the testimony.
In practice
The defective warning annuls trials
After the 2013 Plenary Agreement, the victim who appeared as prosecution does not recover the dispensation even if they later withdraw; and since LO 8/2021 the map of exceptions requires reviewing each case (minors, disability, victim-prosecution). The most common judicial error remains the defective warning: we request its literal record, because its absence annuls the central testimony of many gender-violence trials.
Art. 417 LECrim
Professional and official secrecy
Clergy cannot be forced to testify about what was revealed in confession, officials about secrets whose disclosure is punishable, and persons physically or morally incapacitated. The lawyer’s professional secrecy is reinforced by art. 118.2: it is unavailable even to the client who “authorises”. It yields only to the lawyer’s own criminal involvement; the doctor’s secrecy is articulated with the reporting duty of art. 262. When the prosecution tries to examine on protected matter, the opposition must be immediate and founded on art. 417, not generic.
Arts. 433 to 448 LECrim
Minors and pre-constituted evidence
They regulate the oath, the statements of minors and vulnerable persons with expert intermediation, and pre-constituted evidence: the recorded statement in the investigation with adversarial participation so as not to repeat it at trial, mandatory as a rule for children under 14 after the 2021 reform. Its correct (or defective) practice decides processes for sexual offences against minors.
In practice
Pre-constituted evidence requires real contradiction
The defence must be present or able to intervene through the expert, with complete recording and judicial control (Supreme Court rulings after LO 8/2021). Videos of explorations without the defence’s intervention do not replace the testimony: either it is repeated with safeguards or it does not come in. It is one of the decisive technical fronts in sexual offences against minors.
Arts. 714 and 730 LECrim
Contradictions and unavailable witnesses
At trial, contradictions with what was declared in the investigation are confronted through reading; and statements impossible to reproduce (deceased or untraceable witness) may be introduced by reading if practised with adversarial participation. These are the technical keys for what was said in the investigation to weigh, or not, in the judgment.
In practice
The parallel reading decides credibilities
Art. 714 allows confronting contradictions by reading the investigative statement, but a conviction cannot rest solely on the old unratified version save through the routes of art. 730 with original adversarial participation. We prepare every examination with the two statements in parallel, line by line: the moment of the contradictory reading, well executed, decides entire credibilities.
