Article 448 Spanish Criminal Procedure Act: Preconstituted Evidence: Taking a Witness Statement Before Trial

Article 448 of the Criminal Procedure Act governs the taking of a witness statement before trial where the witness states that he cannot attend because he is leaving Spanish territory, or where there are rational grounds to fear his death or physical or intellectual incapacity before the trial opens. The provision exists to preserve evidence, but it does so on one condition that the defence must police: the possibility of contradiction must be secured in every case, which means that counsel must be appointed and present and must be allowed to cross-examine.

Wording of Article 448 of the Spanish Criminal Procedure Act

Requirements and procedure

1. A warning under article 446 and a statement by the witness that he cannot attend because he must leave Spanish territory, or rationally sufficient grounds to fear his death or incapacity before trial.
2. Appointment of defence counsel within twenty-four hours, of the accused’s choosing or by the court, before the statement is taken.
3. The presence of the accused and of his lawyer at the taking of the statement, with the opportunity to put further questions, subject only to those the judge rejects as manifestly irrelevant.
4. A record signed by all those present, prepared by the judicial officer.

Defence strategy

The impossibility of attending must be genuine. A witness who is a foreign national does not become unavailable merely by returning home. The European instruments on mutual assistance, and videoconference under the Criminal Procedure Act, allow evidence to be taken at trial from abroad. The defence contests the premise of the measure where the ground given is a mere intention to travel, and asks that the alternative means be used, because a statement taken under this article is far harder to challenge later than a live examination.

Effective, not formal, contradiction. The presence of a duty lawyer appointed minutes earlier, without access to the file and without knowledge of the case, is presence without contradiction. The defence records at the act itself what it was unable to examine and why, and requests the file in advance. That record is what allows the statement to be excluded at trial, since the case law requires that the opportunity to question was real.

The accused must be present. The article requires the presence of the accused, not only of his lawyer. Where the statement was taken with the accused absent, in custody elsewhere or not yet identified as such, the requirement fails. This objection is raised as soon as the record is disclosed, and it is verified against the signatures the second paragraph requires.

Questions rejected as irrelevant. The judge may reject only manifestly irrelevant questions. Where questions going to the witness’s credibility, to his relationship with the parties or to his opportunity to observe were refused, the defence has them recorded verbatim with a formal protest, since their refusal is both a ground for excluding the statement and a ground of appeal.

• Article 730: reading evidence from the investigation
• 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.