Article 730 Spanish Criminal Procedure Act: Reading of Evidence Taken During the Investigation

Article 730 of the Criminal Procedure Act permits, at the request of any party, the reading or reproduction at trial of steps taken during the investigation which for reasons independent of the party’s will cannot be reproduced at the hearing. Its second paragraph permits the reproduction of the audiovisual recording of a victim’s or witness’s statement taken as preconstituted evidence during the investigation under article 449 bis. The article is the exception to the rule that only evidence taken at trial may found a judgment, and its limits are strictly construed.

Wording of Article 730 of the Spanish Criminal Procedure Act

Requirements and procedure

1. A step actually taken during the investigation and documented in the file.
2. Impossibility of reproducing it at trial, arising from a cause independent of the will of the party seeking to rely on it: death, untraceable whereabouts, or an incapacity supervening after the statement.
3. For the second paragraph, compliance with the requirements of article 449 bis for preconstituted evidence, including the presence of the defence and the opportunity to question.
4. A request by a party, since the court cannot introduce the material of its own motion.

Defence strategy

The impossibility was not genuine. This is the decisive question in most cases. A witness who has returned to his own country, who has changed address or who has simply not been summoned correctly is not unavailable: the impossibility must be real and must not be attributable to the party relying on it. The defence obtains the record of the attempts at service and, where a witness resides abroad, examines whether the mechanisms for taking evidence by videoconference or through mutual assistance were used.

Absence of the defence when the statement was taken. Material taken during the investigation without the defence present, or before the accused was identified and represented, cannot be converted into evidence by reading it at trial, because the accused never had the opportunity to question. This objection is decisive and it is verified against the record of the step itself, not against the summary in the indictment.

Requirements of preconstituted evidence. Reproduction under the second paragraph presupposes that the statement complied with article 449 bis: judicial supervision, audiovisual recording, presence of the defence and a genuine opportunity to question. Where any of those conditions is missing, the recording is not preconstituted evidence and its reproduction cannot replace live testimony.

Weight where reading is permitted. Even where the reading is admissible, the material was not subject to cross-examination at trial, and the defence addresses its weight: the absence of contemporaneous corroboration, the conditions in which the statement was taken and any inconsistency with the rest of the file. A conviction resting exclusively on read material requires particular scrutiny, and that submission is made expressly for the purposes of any later appeal.

• Article 741: assessment of the evidence
• Witness statements and dispensation
• 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.