Borrowed evidence

Abstract

Modern criminal procedure, of an accusatorial nature, is entirely permeated by the due process of law clause, requiring that the evidentiary procedure develop in full respect of the adversarial principle, understood as the participation of the parties and the judge at the moment evidence is produced. The admissibility of borrowed evidence is examined in light of the constitutional guarantees of the adversarial principle and the natural judge, concluding that it will only be effective if produced in proceedings between the same parties and before the same judge. Analyzing a concrete case in which a convicting sentence was based exclusively on evidence borrowed from other proceedings to recognize the aggravating circumstance of armed conspiracy, it concludes that such evidence is legally nonexistent or absolutely void, and the court, on appeal, must disregard it and set aside the special aggravating circumstance.