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Article 788 of the Spanish Criminal Procedure Act: taking of evidence and final submissions in abbreviated proceedings
Quick answerArticle 788 governs the evidential stage of the trial in abbreviated proceedings: concentration of the sessions, limits on adjournment, the sufficiency of a single expert, the documentary value of official laboratory reports on narcotic substances, the stage of final submissions, and an adjournment of up to ten days for the defence where the prosecution alters its classification.
Together with articles 786 and 787, this provision is the backbone of the abbreviated trial. Its paragraph 5 is one of the most significant safeguards of the right of defence, allowing the session to be adjourned where the prosecution’s final submissions worsen the defendant’s position, in implementation of constitutional doctrine on the accusatorial principle and the prohibition of prejudice to the defence. Its paragraph 3, in turn, contains the rule on the documentary value of official reports on narcotics, applied daily in the defence of offences against public health.
Also cited as: article 788 Spanish Criminal Procedure Act · art. 788 LECrim · LECrim article 788 · artículo 788 de la Ley de Enjuiciamiento Criminal.
Wording of the provision
1. Evidence shall be taken in concentrated form, in as many consecutive sessions as are necessary. Exceptionally, the court may order the suspension or adjournment of the session, up to a maximum of thirty days, in the cases of article 746, the steps already taken remaining valid, unless the judge or a member of the bench is replaced in the case of number 4 of that article.
The failure to establish recovery from injury, the assessment of damage or the verification of another circumstance of similar significance shall not be grounds for adjourning the trial, provided it is not an indispensable requirement for the legal classification of the facts. In that case, the quantification of civil liability shall be deferred to the enforcement stage, the judgment setting out its bases.
2. The provisions of article 703 bis shall apply as regards the witness not taking part in the trial, where pre-constituted evidence has been taken in accordance with articles 449 bis and following.
3. The expert report may be given by a single expert. Within these proceedings, reports issued by official laboratories on the nature, quantity and purity of narcotic substances shall have the character of documentary evidence where they state that they were carried out following the scientific protocols approved by the relevant rules.
4. Once the evidence has been taken, the judge or presiding judge shall call on the prosecution and the defence to state whether they confirm or amend the conclusions of their initial written submissions and to set out orally whatever they consider appropriate on the assessment of the evidence and the legal classification of the facts.
5. Where, in its final submissions, the prosecution changes the legal classification of the facts or a greater degree of participation or execution or aggravating circumstances are relied on, the court may consider adjourning the session, up to a limit of ten days, at the request of the defence, so that it may properly prepare its submissions and, where appropriate, produce such evidence in its favour as it considers appropriate. Following any new evidence the defence may request, the prosecuting parties may in turn amend their final submissions.
6. Where all the prosecuting parties classify the facts as offences punishable by a sentence exceeding the jurisdiction of the criminal court, that court shall declare itself without jurisdiction, bring the trial to an end, and the court clerk shall send the file to the competent Provincial Court. Otherwise, the criminal court shall decide as it considers appropriate on the continuation or conclusion of the trial, but may in no case impose a sentence above that corresponding to its jurisdiction.
7. As regards the recording of the trial sessions and their documentation, the provisions of article 743 of this Act shall apply.
Consolidated text published by the Spanish Official State Gazette, Royal Decree of 14 September 1882 approving the Criminal Procedure Act. Unofficial English rendering; the Spanish text is the authentic one.
Sentencing range. A limit of thirty days for suspension or adjournment under article 746, and of ten days for the adjournment requested by the defence where the prosecution amends its classification in final submissions.
Key facts
| Location | Book IV, title II, chapter IV of the Criminal Procedure Act, on the trial and judgment |
|---|---|
| Guiding principle | Concentration of the sessions |
| Adjournment limit | Thirty days, in the cases of article 746 |
| Expert evidence | A single expert suffices |
| Laboratory reports | Documentary evidence where compliance with scientific protocols is stated |
| Adjournment on amended submissions | Up to ten days, at the defence’s request |
| Current wording | Final provision 1.14 of Organic Act 8/2021 of 4 June, which added paragraph 2 |
Elements and scope
- Concentration of the taking of evidence in consecutive sessions, with exceptional suspension limited to thirty days and to the listed cases of article 746.
- Preservation of the validity of the steps taken despite suspension, save where the judge or a member of the bench is replaced under article 746.4, which requires the trial to be repeated.
- No adjournment for want of medical discharge or damage assessment where these are not indispensable for the legal classification, quantification being deferred to enforcement.
- Sufficiency of a single expert, and documentary value for official laboratory reports on narcotics that record compliance with the scientific protocols.
- The stage of final submissions with an express call on the parties, and the power to adjourn for up to ten days in the defence’s favour where the prosecution aggravates its classification.
Points of application
Scope of the paragraph 5 adjournment. The Constitutional Court has tied this stage to the prohibition of prejudice to the defence. Although the provision says the court “may consider”, refusing an adjournment sought in the face of a substantial and unexpected amendment of the charge may breach article 24 of the Constitution.
Laboratory reports and adversarial testing. The documentary value under paragraph 3 does not prevent the report being challenged. Case law requires the challenge to be reasoned and timely, made in the written defence, in order to compel the expert’s attendance.
Single expert. The sufficiency of one expert does not dispense with adversarial testing. The defence may propose its own expert and request a confrontation where the conclusions differ substantially.
Replacement of the judge. Preservation of the steps taken gives way where the judge or a member of the bench is replaced, in which case immediacy requires the evidence to be taken again in full.
Supervening lack of jurisdiction under paragraph 6. Where all prosecuting parties raise the classification above the criminal court’s jurisdiction, that court must decline jurisdiction. Otherwise, it may not impose a sentence above its jurisdictional limit, which operates as an objective safeguard.
Defence strategy
Request the paragraph 5 adjournment with reasons. Faced with amended submissions that worsen the client’s position, an adjournment should be expressly sought, identifying the exculpatory evidence to be produced and recording an objection if refused.
Challenge laboratory reports in good time. A reasoned challenge in the written defence is the precondition for compelling the expert’s attendance and depriving the report of its documentary value.
Monitor the adjournment periods. Where the thirty-day limit is exceeded, the nullity of the sessions held and the repetition of the trial should be sought, with the appropriate objection.
Protect immediacy. Any change in the composition of the bench requires the evidence to be taken again. The defence should record the incident and request repetition.
Anticipate the civil quantification. Deferring civil liability to enforcement requires the judgment to set out the bases. It is advisable to seek their precise formulation to avoid disproportionate assessments.
Defence in this area
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This page is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the case and requires review of the file by a lawyer. The English rendering of the legal text is unofficial.
Last reviewed: 21 September 2026.
Frequently asked questions
Can an abbreviated trial already under way be adjourned?
Yes, exceptionally and in the cases of article 746, up to a maximum of thirty days. The steps taken remain valid unless the judge or a member of the bench is replaced.
What if the prosecution changes the charge at the end of the trial?
The defence may request an adjournment of up to ten days to prepare its submissions and produce exculpatory evidence. An unjustified refusal may cause prejudice to the defence.
Is a single expert enough in abbreviated proceedings?
Yes. Paragraph 3 expressly allows the expert report to be given by one expert, unlike the regime of the ordinary sumario.
Must the laboratory expert be called in drug cases?
Only where the report has been challenged in a reasoned and timely manner in the written defence. Otherwise, the report has the value of documentary evidence.
May the criminal court impose a sentence above its jurisdiction?
No. Paragraph 6 expressly prevents this, and where all prosecuting parties raise the classification above that limit the court must decline jurisdiction and send the file to the Provincial Court.
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