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Article 791 of the Spanish Criminal Procedure Act: hearing and evidence on criminal appeal
Quick answerArticle 791 governs the stage at which the court rules on evidence and holds a hearing in appeals against judgments delivered in abbreviated proceedings. The court rules within three days on the admission of the evidence proposed and may order a hearing, which is listed within the following fifteen days, all parties being summoned.
The provision forms part of the appeal regime in abbreviated proceedings, whose procedure begins with articles 790 and 792. Its practical importance lies in its being the only stage at which the second instance in criminal matters admits evidence, and in the broad margin the article confers on the court to hold a hearing where it considers this necessary for the proper formation of a reasoned conviction. Constitutional doctrine and the case law of the European Court of Human Rights have severely restricted the possibility of reversing acquittals without hearing the defendant in person, which gives this stage decisive relevance.
Also cited as: article 791 Spanish Criminal Procedure Act · art. 791 LECrim · LECrim article 791 · artículo 791 de la Ley de Enjuiciamiento Criminal.
Wording of the provision
1. If the written grounds of appeal or the replies contain a proposal of evidence or an application to replay the recorded evidence, the court shall rule within three days on the admission of the proposal and shall order, where appropriate, that the court clerk list a date for the hearing. A hearing may also be held where the court, of its own motion or at the request of a party, considers it necessary for the proper formation of a reasoned conviction.
2. The court clerk shall list the hearing within the following fifteen days and all parties shall be summoned to it. Where the victim has so requested, he or she shall be informed by the court clerk, even if not a party and even if his or her intervention is not required.
The hearing shall begin, where appropriate, with the taking of evidence and the replaying of the recordings if there is cause for it. The parties shall then orally summarise the outcome of that evidence and the basis of their submissions.
3. As regards the recording of the hearing and its documentation, the provisions of article 743 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. Three days to rule on the admission of evidence and fifteen days to list the hearing. The recording and documentation of the hearing are governed by article 743.
Key facts
| Location | Book IV, title II, chapter III of the Criminal Procedure Act, on appeal |
|---|---|
| Scope | Appeals against judgments delivered in abbreviated proceedings |
| Time limit for admitting evidence | Three days from receipt of the written submissions |
| Time limit for listing | Fifteen days from the decision to hold a hearing |
| Grounds for a hearing | Evidence admitted, replaying of recordings, or the need for a reasoned conviction |
| Information to the victim | Mandatory where requested, even if the victim is not a party |
| Current wording | Final provision 1.25 of Act 4/2015 of 27 April, as to paragraph 2 |
Elements and scope
- A proposal of evidence or an application to replay the recorded evidence in the grounds of appeal or the replies, which is the premise for the court’s ruling.
- A ruling on admission within three days, which must be reasoned and may be raised again on cassation where the refusal causes prejudice to the defence.
- The court’s autonomous power to order a hearing, of its own motion or at a party’s request, where it considers this necessary for the proper formation of a reasoned conviction.
- Listing by the court clerk within the following fifteen days, with all parties summoned and, where appropriate, information given to the victim.
- The order of the hearing: taking of evidence and replaying of recordings, followed by the parties’ oral summary of the outcome and the basis of their submissions.
Points of application
Prohibition on reversing an acquittal without hearing the defendant. The doctrine of the Constitutional Court, in line with the case law of the European Court of Human Rights, prevents convicting on appeal a person acquitted at first instance, or aggravating a sentence, through a fresh assessment of personal evidence without immediacy. Only strictly legal questions or errors of legal classification on the established facts may be reviewed.
Scope of article 790.3. The evidence admissible on appeal is exhaustively listed in article 790.3: evidence that could not be proposed at first instance, evidence proposed and wrongly refused, and evidence admitted but not taken for reasons not attributable to the party proposing it. Outside those cases, refusal is mandatory.
The hearing is not mandatory. Holding a hearing is not automatic. Case law accepts refusal where the appeal raises strictly legal questions, without this infringing the right to a review recognised in article 14.5 of the International Covenant on Civil and Political Rights.
Replaying the recordings. Replaying the audiovisual record of the trial is not equivalent to immediacy. The Supreme Court has held that viewing the recording does not entitle the appellate court to substitute its own assessment of credibility for that of the trial judge.
Documentation of the hearing. The reference to article 743 requires recording on a medium suitable for replay and the authentication of the court clerk. Defects in the recording may found nullity where they prevent review on appeal.
Defence strategy
Apply for a hearing. Where the appeal challenges the assessment of personal evidence, a hearing and the personal examination of the defendant should be expressly requested, invoking the constitutional doctrine on the reversal of acquittals.
Frame evidence on appeal correctly. The proposal must fall within the cases of article 790.3 and expressly justify that classification, establishing the prior impossibility or refusal.
Challenge the refusal of evidence. An unreasoned or unreasonable refusal of relevant and necessary evidence may found a ground of cassation for procedural irregularity under article 850 or a breach of article 24.2 of the Constitution.
Oppose a review of credibility. Against a prosecution appeal seeking conviction of an acquitted defendant on the basis of a fresh reading of the testimony, the lack of immediacy and the impossibility of reassessing personal evidence should be invoked.
Monitor the regularity of the listing. The summoning of all parties and compliance with the fifteen-day period must be verified, as must information to the victim where requested, the omission of which may be cured.
Defence in this area
If you or your company are facing proceedings in this area, the firm provides defence and prosecution in Alicante and Madrid, with 24-hour assistance to detained persons.
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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 evidence be taken on a criminal appeal?
Yes, but only in the limited cases of article 790.3: evidence that could not be proposed at first instance, evidence wrongly refused, and evidence admitted but not taken for reasons beyond the proposing party’s control. The court rules on admission within three days.
Is a hearing on appeal mandatory?
No. It is held where evidence is admitted or recordings are to be replayed, and also where the court considers it necessary to form a reasoned conviction. In strictly legal appeals the case may be decided without a hearing.
Can the appellate court convict a person who was acquitted?
Only on the basis of legal questions or errors of classification, respecting the established facts. Reversing an acquittal through a fresh assessment of personal evidence requires hearing the defendant and is severely restricted.
Does watching the trial recording allow evidence to be reassessed?
Replaying the audiovisual record is not equivalent to immediacy. Case law does not accept that viewing the recording allows the appellate court to substitute its own assessment of credibility for that made at first instance.
What is the time limit for listing the hearing?
The court clerk must list it within the following fifteen days, summoning all parties and informing the victim where the victim has so requested.
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