Starting from the effective date of the approved reform, the accused will not testify until all evidence, including testimonial, expert, and documentary evidence, has been presented. This reform is contained in the Organic Bill Project on Efficiency Measures for the Public Justice Service – approved on December 19 by the Congress of Deputies – whose commencement will be set three months after its publication in the Official State Gazette (BOE).

The reform establishes that there will be a new order of proceedings in the oral trial, which will be reflected in Article 701 of the Criminal Procedure Law (LECRim).

The paradox, as the Criminal Chamber of the Supreme Court rightly recalls in its judgment 714/2023, dated September 28, is that said article of the LECRim never required the accused to testify first, as has been done since its enactment in 1882, 142 years ago.

Article 701 states that the evidentiary proceedings and the examination of witnesses will be carried out in the following order: first those offered by the Public Prosecutor’s Office, then those of the other parties, and finally those of the defendants. The evidence and witnesses will follow the order indicated in the respective written submissions and lists. However, the president may alter this order ex officio or at the request of a party if deemed necessary to clarify the facts or uncover the truth.

However, the custom has always prevailed that the accused testifies first—a remnant of inquisitorial times that has persisted to this day. Although it is true that in recent years many courts have been allowing the accused to testify last, supported by several previous judgments from the Supreme Court.

This Article 701 will now dictate that the accused will testify after the presentation of all evidence, allowing them to fully understand the extent of the evidence before formulating their version of events. This is established by the approved reform.

Additionally, Article 688 has also been amended to ensure that the accused is informed of this right before the trial begins.

The procedure in the oral trial is structured as follows: i) First, both the prosecution – public prosecutor, private prosecution, and popular prosecution – will present their initial arguments. ii) Second, the practice of evidence. Witnesses testify, followed by experts, and then documents and other material evidence are presented. iii) Third, the accused, with full knowledge of the evidence, may choose to testify by responding only to their defense lawyer, answer questions from the prosecution and the court, or waive the right to testify, exercising their right against self-incrimination. iv) Fourth, conclusions, also known as the final plea, where the parties adjust their final requests before the court.

This change, contained in the aforementioned reform, aims to balance the criminal process. Each accused will be able to prepare their testimony with full knowledge of the evidence and testimonies presented against them. It is, in fact, an adjustment in line with the principles of equality of arms and contradiction, which are the pillars of modern procedural law following the standards of the European Court of Human Rights.

The Supreme Court, in the mentioned judgment, authored by Magistrate Vicente Magro, emphasizes “the undeniable advantages for the accused in testifying after the completion of the evidence practice in relation to what the witnesses have testified, especially or the documents that have been elevated to the plenary as ‘usable’ when the judge or court issues a sentence, the expert report ratified and explained in the plenary. Their testimony can be more ‘nuanced’ if they are aware of what the witnesses have testified and of some technical data from the experts’ report, as we say.”

However, the accused’s right to the last word remains.