Pre-Constituted Evidence Lawyer (Child Testimony)

Pre-Constituted Evidence: Concept and Mandatory Use

Pre-constituted evidence is the procedural mechanism by which the statement of child victims of crime — especially offences against sexual freedom — is taken in advance and with full safeguards, to avoid the secondary victimisation that having them appear at trial and repeat their testimony would entail. Since the entry into force of Organic Law 8/2021 on the comprehensive protection of children and adolescents against violence (LOPIVI), taking pre-constituted evidence is mandatory where the victim is under fourteen or a person with a disability in need of special protection.

The rules are contained in Articles 449 bis and 449 ter of the Criminal Procedure Act (LECrim), introduced by the LOPIVI. Article 449 bis LECrim requires the judge to take pre-constituted evidence at the investigation stage where the victim is under fourteen or a person with a disability in need of special protection, provided the offence is one of those listed (among others, offences against life, physical or moral integrity, freedom, or sexual freedom and indemnity, as well as trafficking offences). Article 449 ter LECrim also allows it for those over fourteen where circumstances make it advisable.

Procedural Safeguards

For the pre-constituted evidence to be valid and effective, certain safeguards must be strictly observed: (1) a reasoned prior judicial authorisation; (2) the presence of the investigating judge directing the act; (3) the intervention of a specialist professional (forensic psychologist or equivalent) acting as a filter between the parties and the child; (4) the parties' opportunity (prosecution, defense, Public Prosecutor) to put questions through the professional; (5) full audiovisual recording; (6) the absence of leading, suggestive or captious questions; (7) preservation of the recording with a chain of custody; and (8) the defense's right to cross-examination.

Grounds for Nullity and Challenge

The defense may challenge pre-constituted evidence on multiple grounds: absent or defective judicial authorisation, failure to give the parties proper notice, defects in legal assistance, the intervention of a non-specialist professional, the use of leading or suggestive questions that contaminate the testimony, technical defects in the recording affecting its integrity, contamination of the testimony by earlier non-protocolised interviews, breach of the psychological protocols for forensic interviewing, and a break in the chain of custody of the recording.

Assessment of the Testimony and Defense Strategy

Pre-constituted testimony is assessed under the Supreme Court's general criteria for the single-witness statement in sexual offences: subjective credibility (the absence of spurious motives), objective plausibility (internal coherence, peripheral corroboration), and persistence in the incrimination. The defense may introduce a psychological credibility report to question the reliability of the testimony where there are indicators of inducement, contamination or fabrication.

We build the defense around: a thorough technical analysis of the recording; a challenge to any breached safeguards; the introduction of psychological expert evidence on credibility and child memory; discussion of the child's chronological and developmental age; the identification of signs of contamination of the testimony; a cross-assessment with the other evidence in the case; and a request for further investigative steps where appropriate. We act before the Investigating Courts, the Criminal Courts, the Provincial Courts and the High Courts of Justice.

The pre-constituted evidence procedure: competent court and validity safeguards

The pre-constitution of the statement of a child under fourteen, or of a person with a disability requiring special protection, is ordered and carried out during the investigation phase, before the investigating judge with territorial jurisdiction over the events, under Articles 449 bis and 449 ter of the Criminal Procedure Act introduced by Organic Law 8/2021. This is not an ordinary investigative step: it is an act intended to replace the witness's testimony at trial, so its validity depends on strict compliance with the statutory requirements.

The cornerstone of that validity is the adversarial principle. Although the absence of a properly summoned defendant does not prevent the step from being taken, defence counsel must be present in every case in order to question and propose questions; if appointed counsel fails to appear without cause, a court-appointed lawyer steps in. The statement is taken with the support of specialised professionals, avoiding any visual confrontation with the defendant, and is recorded in full on audiovisual media. From the defence we verify that the chain of safeguards is complete, because any deficiency in the adversarial process or in documentation may undermine the statement's ability to support a conviction.

The consent framework after LO 10/2022 and LO 4/2023: evidential relevance

Although pre-constituted evidence is a strictly procedural matter, its content is assessed within the substantive framework in force. Following Organic Law 10/2022 and its amendment by Organic Law 4/2023, Article 178 of the Criminal Code places the absence of consent at the centre, understood as a freely expressed manifestation of the will. With minors there is, in addition, reinforced protection of their indemnity, so the debate does not turn on whether consent was given, but on whether the alleged facts have been established.

This perspective has consequences for assessing a pre-constituted statement. The defence examines the internal coherence of the account, its persistence, the possible influence of third parties or of poorly conducted prior interviews, and the presence of objective corroboration. The aim is not to attack the victim, but to confirm that the procedure was carried out with sound technique and without suggestion, since an account obtained through leading questions or without the safeguards of the psychosocial team loses evidential reliability when it comes to rebutting the presumption of innocence.

Corroboration, expert evidence and complementary proof

A minor's statement taken as pre-constituted evidence does not operate in a vacuum: where it is the principal evidence, the standard of assessment requires peripheral corroborating elements to support it. Hence the relevance of expert psychological assessment of the testimony's credibility, forensic medical reports and, depending on the case, toxicological evidence aimed at establishing or ruling out chemical submission, and digital evidence where the facts have an online dimension or involve capture through devices.

From the defence we analyse each of these sources with a technical eye: the methodology of the expert report, the chain of custody of biological samples and devices, the detection windows for substances and the integrity of electronic evidence. Weak, contradictory or improperly obtained corroboration adds no solidity to the pre-constituted statement. The objective is for the court to assess a complete evidential picture obtained with full safeguards, without shortcuts that prejudice either the right of defence or the reliability of the outcome.

Associated consequences, prescription and ways of concluding the proceedings

Here it is important to distinguish the procedural plane from the substantive consequences, which depend on the specific offence ultimately found and not on the pre-constitution step itself. As a reference point, where the victim is a minor, Article 132.1 of the Criminal Code lays down a special prescription rule: for offences against sexual freedom, among others, the limitation period does not begin to run until the victim turns thirty-five, and if the victim dies before then, from the date of death. The rule is designed not to penalise late disclosure, which is common in these cases.

Among the accessory consequences of a possible conviction for a sexual offence are the supervised release measure of Article 192 of the Criminal Code, served after the custodial sentence, and registration in the Central Register of Sex Offenders, with its disqualifying effects for activities involving minors. As to concluding the proceedings, reparation of harm and, where applicable, a guilty-plea agreement may carry sentencing effects within the statutory margins. The appropriate strategy is always set according to the available evidence and any mitigating or aggravating circumstances present.