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.