Article 741 Spanish Criminal Procedure Act: Assessment of the Evidence and the Duty to Give Reasons

Article 741 of the Criminal Procedure Act states the rule governing how a Spanish criminal court decides: assessing according to its conscience the evidence taken at trial, the arguments of the prosecution and of the defence and what the accused persons themselves have said, it shall give judgment within the period fixed by law. Its second paragraph adds the obligation that gives the rule its content: whenever the court exercises the discretion the Criminal Code confers in classifying the offence or in fixing the penalty, it must state whether it has taken into account the factors that the applicable provision requires.

Wording of Article 741 of the Spanish Criminal Procedure Act

Requirements and procedure

1. Evidence taken at the trial, in the presence of the parties and subject to cross-examination, as the exclusive basis of the judgment.
2. Consideration of the submissions of both prosecution and defence, and of the statements of the accused.
3. Assessment according to conscience, which the case law reads as rational assessment subject to review, not as unfettered discretion.
4. An express statement of the factors taken into account whenever a statutory discretion is exercised in classification or in sentencing.

Defence strategy

Excluding material not taken at trial. The judgment may rest only on what was produced at the hearing. Statements made during the investigation and not ratified, documents never introduced, and police reports whose authors did not attend cannot found a conviction, and the defence identifies each such item in the judgment. The exception is evidence lawfully preconstituted under articles 449 bis and 730, whose conditions must themselves be verified.

Rational assessment as a reviewable question. Assessment according to conscience is not immune from review. Where the inference drawn from the evidence is not one the evidence can sustain, where a decisive contradiction between witnesses is not addressed, or where the court relies on a single account without the corroboration the case law requires, the assessment is irrational and the point becomes a question of law reviewable under article 852.

Reasons for the sentence imposed. The second paragraph is regularly overlooked. Where the court moves within a bracket, applies an aggravating circumstance, declines to apply a mitigating circumstance or fixes the day-fine amount, it must state the factors considered. A sentence imposed without those reasons is set aside on appeal, and for a defendant whose sentence sits near the threshold for suspension this is frequently the most productive ground.

Building the record at trial. Because the judgment is confined to what happened at trial, the defence ensures that every document relied on is formally produced, that every objection is recorded, that questions refused are noted with a protest, and that the recording of the sessions is requested afterwards under article 790. Grounds of appeal are made at trial and merely written up later.

• Article 852: cassation on constitutional grounds
• Article 730: reading of evidence from the investigation
• Spanish Criminal Procedure Act by article
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.