Pre-Constituted Evidence: the Minor's Testimony

Pre-constituted evidence is decisive in trials for sexual offences against minors. As specialist criminal lawyers, we explain how it works, what rights the defence holds and on what grounds it can be challenged.

Concept

Pre-constituted evidence consists of the early recording of the minor's testimony during the investigation phase, so that the account is captured in conditions that allow it to be played back later at trial without the minor having to testify again. Since Organic Law 8/2021 it has been mandatory for minors under 14.

Its purpose is to prevent secondary victimisation: the additional harm a minor suffers when forced to recount the same events over and over before different professionals and bodies throughout the proceedings. Each repetition revives the experience and, in addition, degrades the quality of the memory, which becomes contaminated with every new retelling. With pre-constituted evidence, the minor testifies only once, in an adapted setting and guided by a professional.

That said, bringing the testimony forward cannot come at the expense of the accused's safeguards. Precisely because that recording will stand in for live testimony at trial, the procedure must be carried out with full adversarial participation: the defence must be able to intervene at the moment it takes place. If that safeguard is not respected, the evidence is flawed from the outset.

Procedure

Pre-constituted evidence follows an ordered sequence, and compliance with each step should be reviewed carefully:

• Judicial order: the investigating judge orders the interview of the minor and summons all the parties, including the defence.
• Specialist psychologist: the interview is not conducted by the parties but by a psychologist with specific training in child testimony, who adapts the language and pace to the minor's age and maturity.
• Gesell chamber: the interview takes place in an adapted room, separated by a one-way mirror or connected by video link. The minor speaks alone with the professional while the judge, the prosecutor and the lawyers follow the interview from the other side.
• Defence questions: defence counsel proposes the questions they consider necessary and the psychologist puts them to the minor, rephrased in a neutral manner.
• Full recording: the session is recorded in its entirety, from start to finish, identifying everyone who took part and documenting how it unfolded.
• Playback at trial: when the trial is held, the video is screened before the court, which assesses the testimony without the minor having to appear again.

Rights of the Defence

For the recording to stand in for testimony at trial, the defence must have had a genuine opportunity to take part in it. That translates into several specific rights:

• Prior summons: to be notified sufficiently in advance of the procedure.
• Presence: to attend the interview and follow it in real time.
• Proposing questions: to put forward the questions it considers relevant for the psychologist to ask the minor.
• Access to the recording: to obtain the full recording and to know the protocol followed in the interview.

The time to exercise these rights is the procedure itself. If counsel could have proposed questions and did not, it will later be difficult to claim a lack of defence; if, on the other hand, the defence was not summoned or its questions were rejected without justification, that defect can invalidate the evidence.

Challenging It

The recording is not untouchable. The most common grounds of challenge are:

• Leading questions: the interviewer prompts the answers instead of letting the minor build a free account. Analysing the language used in the interview is key to detecting this.
• Contamination by third parties: the account arrives at the interview already shaped by prior conversations with adults in the minor's circle or by earlier interviews carried out without proper safeguards.
• Lack of cross-examination: the defence was not summoned, could not attend or was not allowed to propose questions.
• Technical defects: an incomplete recording, cuts, poor audio or the impossibility of identifying who took part.
• A psychologist who is not a specialist: the interview was conducted by a professional without specific qualifications in child testimony.

A challenge requires a painstaking examination of the video and the protocol: how the questions were phrased, who was present, what contacts the minor had before testifying and whether the methodology used was appropriate.

Assessment at Trial

The fact that the recording is played at trial does not mean the court must accept it without question. The defence can dispute the reliability of the interview at the hearing, relying on the defects found in the video and in the protocol, and the court weighs that testimony together with the rest of the evidence. A properly conducted interview carries considerable weight; a poorly conducted one may see its credibility greatly reduced or be excluded from the body of evidence altogether.