Puerto Rico
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Legal Resources for Puerto Rico
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Background
Puerto Rico, officially the Commonwealth of Puerto Rico, is an island in the Caribbean that is an unincorporated territory of the United States. Historically it was ruled by the Spanish and was a strategic point in Habsburg Spain’s domination of Central America. It was only after the Spanish-American War of Succession that the United States acquired control of the territory. Throughout the 20th century, Puerto Ricans gradually acquired more rights vis-à-vis the United States. Whilst the United States President is technically the President of Puerto Rico (despite Puerto Ricans not being eligible to vote in the United States), Puerto Ricans do automatically have US citizenship and can elect their own governors. However, their relationship with the US has always been complicated, with critics suggesting that the main reason that Puerto Ricans were awarded US citizenship in the first place was so that they could be drafted in World War I.
Due to Puerto Rico’s colonial past, more than 90% of Puerto Ricans are Hispanic. The official languages are both English and Spanish, albeit Spanish is what the vast majority of Puerto Ricans would consider their native language. English is taught in all schools but moves for more English lessons are met with fierce opposition, perhaps because the teachers themselves do not speak much English. As Puerto Rico is located close to the island of Hispañola, an issue that Puerto Rico faces is immigration from the Dominican Republic.
Puerto Rico is also an important location for the transatlantic drug trade, with lots of drug-related activity both through and within the country. Further, Puerto Rico also faces a lot of violence. At one point, it was the 6th most dangerous place in the world and there are commonly over 500 murders per year. A further issue within Puerto Rico is corruption, especially corruption of the police force. Recently numerous arrests have been made in this regard, but the issue persists and is likely amplified by the difficult economic situation in the country.
The Legal system
The complicated relationship with the United States is also visible in the legal situation within the country. Puerto Rico has a hybrid system that has both common law and civil law elements. This is due to Puerto Rico’s history as first a Spanish colonial state, and then a US protectorate.
The country’s court system is similarly fractured; at a lower level, cases are handled in Spanish by the local/district court. However, once cases reach federal level, the same cases will be tried in English by the federal court. As such, lawyers in Puerto Rico are expected to speak both English and Spanish fluently. Cases are not separately tried in these two court systems, instead they are both part of a one court system. This means that the same case can first be tried at a local level and then be appealed to federal level but will not be tried separately in both courts.
Puerto Rico at a federal level is also considered a judicial district of the US and thus at a federal level the US Federal Rules of Criminal Procedure apply. This is different to the local level, where the Rules of Criminal procedure apply.
Legal Aid
There is no public legal aid offered, however there are numerous private organisations that are in part funded by US non-profits and similar organisations. One of the largest is “Servicios Legales de Puerto Rico”, which is also quoted by official US sources as the main point of contact for legal aid. However, this organisation is only involved in civil cases.
Further, it is important to note that SLPR cites that 50% of Puerto Ricans would be eligible for their legal aid based on poverty levels. This implies that even if much legal aid is offered in Puerto Rico, it is unlikely to suffice as so many people require it.
Justia cites no criminal legal aid organisations for Puerto Rico. There are some civil rights and civil society organisations registered with CauseIQ based on their tax filings, but none of these appear to offer legal aid in criminal cases. Most only do civil cases or focus on preventative measures and the strengthening of civil society.
Source of Defendants Rights
Puerto Rico has a constitution since 1951 that outlines the basic structure of government, the relationship with the US and the rights of its citizens.
The main sources of defendant’s rights in criminal cases are the Puerto Rican Constitution, the Rules in Criminal Procedure and indirectly the Penal Code on a domestic level.
The U.S. constitution does not technically apply to Puerto Ricans, but the Puerto Rican courts are bound by the U.S. Supreme Court.
Internationally, Puerto Rico is not a member state of the UN as it cannot properly be considered a state. Recently in Commonwealth of Puerto Rico v. Sanchez Valle, the US Supreme Court ruled that Puerto Rico’s sovereignty is dependent on the United States (and can thus not properly be considered sovereignty). As such, claiming international law rights can be difficult for Puerto Ricans as the US often has quite a critical stance towards international law.
Whilst the Universal Declaration of Human Rights could technically be invoked in Puerto Rico (not as a treaty but as customary international law), in practice this could be difficult due to the US’ complicated relationship with international human rights treaties and their tendency to interpret these liberally.
In Puerto Rico, civil rights (which are different to human rights!) can be legally protected by invoking the Bill of Rights of the Constitution of the Commonwealth of Puerto Rico and case law generally.
In similar style to US law, laws in Puerto Rico can be struck down when it violates the constitution. Thus, if a victim’s constitutional rights are violated, they can launch a claim against the state with the effect that that particular law is invalidated for everyone. As the constitution protects rights such as human dignity, protection from cruel and unusual punishment, and habeas corpus this can become relevant for certain victims.
The US constitution is not directly relevant for Puerto Ricans even if at a federal level it is part of the US’ judiciary; as such, only the fundamental rights recognised by the US Supreme Court (rather than the US constitution) can be invoked by Puerto Ricans (Pueblo v. Casellas Toro).
Rights of the Accused
§ 10 of Article II of the Bill of Rights within the Puerto Rican Constitution renders unlawful arrests, searches and seizures illegal and unconstitutional. Typically warrants will be required for any arrest, searches or seizures. This is explored in more depth below.
A civil case can also be launched against the Commonwealth of Puerto Rico in the case of unlawful arrest, malicious persecution and other unauthorized activities by officials, police officers and other government employees according to §3081 of the Law of Puerto Rico Annotated (LPRA). This also includes assault and battery. This right also extends to “unofficial work” by members of the police force, hence this would generally include unlawful searches and seizures. There has been recent case law on isolated incidents of this occurring where it cannot be precisely traced who gave what order and it appears that individual police officers or groups of them have been working separately from official orders.
Under §11 of the Bill of Rights of the Constitution of the Commonwealth of Puerto Rico, incarceration prior to trial is not permitted above six months. Debt cannot be a cause for imprisonment.
Restrictions of the right to liberty are only permitted where the detention is following a judgment to that effect or in a very limited way before trial.
Individuals can also claim under §3081 against the state in a civil claim concerning unlawful imprisonment.
Under §11 of the Bill of Rights of the Constitution of the Commonwealth of Puerto Rico, the accused in all criminal prosecutions has the right to be informed of the “nature and cause of the accusation and to have a copy thereof”.
Pursuant to §11 of the Bill of Rights of the Constitution of the Commonwealth of Puerto Rico, the accused is entitled to the presumption of innocence.
The defendant also has the right to freedom of action, meaning that they can appear at trial without handcuffs or shackles (El Pueblo de P.R. v. Garcíaia). This further supports the presumption of innocence as this could arguably subconsciously or consciously impact the jury or witnesses if they were to see the defendant in shackles. This would thus also violate the principle of a fair and impartial trial (discussed below).
Under §11 of the Bill of Rights of the Constitution of the Commonwealth of Puerto Rico, no defendant will be required to be a witness against himself. If the defendant chooses not to testify, this cannot be used against him or taken to mean that he is not innocent.
However, the defendant can incriminate themselves. They will be informed of their rights beforehand, but acts of self-incrimination are generally counted as a voluntary choice (El Pueblo de P.R. v. Medina Hernández). However, the right to remain silent, as enshrined by the Constitution, does exist and is also supported by case law (eg. Pueblo v. De Jesús).
Admitting certain parts of a crime in front of officers or the prosecutor when these have promised that admitting this will have no consequences by law means that this statement cannot be used. However, it is crucial to be aware that proof difficulties might arise regarding proving that a specific officer said this to a defendant.
§11 of the Code of Criminal Procedure outlines the right to be allowed counsel as a criminal defendant and to defend yourself against the charges.
It does not specifically mention that the support provided by counsel needs to be effective or that the state will support this if the defendant cannot afford legal assistance. Instead, the defendant can also defend themselves. This implies that the court does not thoroughly investigate whether the legal support provided by counsel is effective.
This is significant as the largest legal aid organization of Puerto Rico, SPLR, has suggested that 50% of Puerto Ricans would be eligible for legal aid. This implies that many people would not be able to afford counsel. As such, the absence of public provision of pro bono and even private provision of criminal pro bono is evidently problematic. This arguably undermines the right to a fair trial.
Some supportive measures are implemented related to language barriers or hearing difficulties, as are further discussed below.
However, if a defendant registers as indigent, they generally have the right to court-appointed council (Rule 144 of the Rules of Criminal Procedure). This representation extends throughout all the stages of the proceedings.
§11 of the Code of Criminal Procedure also implicitly includes the right to present a defence by yourself or via legal counsel.
§7 of the Bill of Rights of the Constitution of Puerto Rico enshrines the right to due process. Deprivation of liberty or property has to occur via the due process of the law.
Minor issues in the process, however, will not always be a ground for review or appeal of the trial, as discussed below.
Everyone has the right to a fair trial (below) and this implicitly includes that the laws should be equally applicable to everyone. §7 of the Bill of Rights of the Constitution of the Commonwealth of Puerto Rico also enshrines the right to equal protection of laws.
Further, civil claims are available in the case of unauthorized activities by representatives of the state such as police officers. If a law discriminates against a certain group of people, a civil claim can also be brought against the state to rule that specific law as unconstitutional and strike it out.
Pursuant to §11 of the Bill of Rights of the Constitution of the Commonwealth of Puerto Rico, before conviction every accused is entitled to be admitted to bail. In practice, this however does not mean that every defendant will be on bail, as various requirements including high monetary sums can be included as a condition for bail. However, §11 does stipulate that bail should not be excessive.
The right against ex post facto prosecution is enshrined in the Constitution of Puerto Rico. This means that previous acts cannot be criminalized and then prosecuted via the introduction of a new law. However, it is important to understand that ex post facto does not prevent the State from extending the time limit for the prosecution of future offences or for prosecutions not yet time-barred (Pueblo v. Candelario).
This principle straightforwardly exists in Puerto Rico, enshrined by the Bill of Rights in the Constitution.
A manifestation of it is also visible in the local and federal system division of Puerto Rico. The federal system is part of the judiciary of the US, as Puerto Rico is officially a judicial district of the US. Whilst a trial can advance from local to a federal level via appeals, a trial cannot be separately (and therefore doubly) be tried at a local and a federal level simultaneously. This provision also serves the purpose of avoiding double jeopardy.
- Generally:
In a criminal action, the defendant is generally entitled to fair trial features. Pursuant to § 11 of the Code of Criminal Procedure, the defendant is entitled to a speedy and public trial, to be allowed counsel and thereby defend themselves, and to produce and confront witnesses.
The purpose of these provisions is that defendants not be subjected to trial unless evidence exists that demonstrates probable cause (El Pueblo de P.R. v. Rodríguez Ríos).
The requisite standard of proof is beyond a reasonable doubt; and the trial needs to be public, fair, and impartial (El Pueblo de P.R. v. Torres Rivera).
However, there are some limitations regarding this right to a fair trial. Whilst everyone is ostensibly entitled to a fair trial, the case law has clarified that a fair trial does not mean a perfect trial (People v. Lopez Rodriguez). This suggests that minor imperfections and issues in a fair trial may be overlooked, and a retrial or invalidation of the verdict may not in practice be possible in such situations. For example, attorneys slapping the desk of the stenographer (El Pueblo De P.R. v. Santiago) or C.I.C agents making arrests of family members of the defendant in the court’s halls did not result in an unfair or not impartial trial as long as the jury was not aware of the latter (El Pueblo de P.R. v. Arroyo).
However, if the judge interferes too much in the due process of the court room, for example by conducting cross-examination himself, this would be considered a violation of the right to a fair and impartial trial (El Pueblo De P.R. v. MartÞn Martell Cajigas).
Further, the right to a fair trial is also limited in that non-Spanish-speaking defendants will not generally be allowed to have their trial in English. The burden of proof is on the defendant to demonstrate that there are some kind of extraordinary circumstances that mean that with a competent interpreter the trial still cannot be held (1987 Op. Sec. Jus. No. 34.) This is naturally problematic as it is obvious that witness statements or general understanding of the trial will be impaired by the trial being held in a language that one does not speak.
Further, a trial is not considered to be unfair just because a judge is involved in both the arrest stage and the sentencing stage (El Pueblo de P.R. v Gonzalez). This is notably different to some other jurisdictions, for example the United Kingdom, where these roles are taken by separate judges.
- Right to a Fair, Public and Speedy Trial:
The right to a speedy trial starts taking effect upon arrest (People v. Rivera Colín). Generally, trials are expected to be public, but the judge can implement measures such as mandatory searching of everyone who attends the trial (El Pueblo de P.R. v. Romero). During the examination of a specific witness, the judge can also close the courtroom to the public (El Pueblo Apelado v. Collazo). - Right to a Trial by Jury:
The right to a trial by jury was tacitly recognised as a fundamental right in Pueblo v. Laureano. However, the imposition of a jury depends on the potential maximum sentence of the defendant. Following Baldwin v. New York, it is likely that a jury is available for crimes with a punishment greater than six months.
Under §11 of the Bill of Rights of the Constitution of the Commonwealth of Puerto Rico, the defendant to a felony trial is entitled to the right of trial by impartial jury composed of twelve residents of the district, with the verdict to be decided by majority vote.
- Right to an Impartial Judge:
An impartial judge is implicit in the notion of a fair trial. This is visible in some of the case law outlined above.
The Puerto Rican court system works partially in English and partially in Spanish. At the lower level, trials are typically conducted in Spanish. At the federal level, they are conducted in English as the federal courts are part of the US court system. This means that court judgements often switch between the two languages when citing (evidential) passages from lower courts or maxims of law from higher courts. This means that the chances are high that at least for some time a language will be spoken at trial in which the accused is not entirely fluent.
The right to language interpretation does exist, but it is important to note that the right to have the trial conducted entirely in English or Spanish does not exist unless extraordinary circumstances can be demonstrated.
The right to habeas corpus exists in Puerto Rico under §1741 of the Code of Criminal Procedure. Every person unlawfully imprisoned or restrained of his liberty is entitled to a writ of habeas corpus. This means that they can enquire in front of a judge as to the reasons and justifications for their imprisonment. It is noteworthy that a judge does not need to consider a writ of habeas corpus if a first instance judge has already determined that the detention is lawful. If the person is already imprisoned following a final judgement, it is important to first exhaust state remedies under Rule 192.1 of the Rules of Criminal Procedure before claiming habeas corpus.
Capital punishment is a difficult topic in Puerto Rico. According to the Puerto Rican constitution, the death penalty is not allowed under §7 of the Bill of Rights of the Constitution of the Commonwealth of Puerto Rico. Thus, in United States v. Acosta Martinez, it was ruled that the Federal Death Penalty Act is technically locally inapplicable in Puerto Rico.
However, Amnesty International reports that Puerto Rico is a “retentionist” state in law, meaning that they have retained the death penalty.
The availability of specific civil procedure rules for capital cases also implies that capital punishment is still possible in Puerto Rico.
§ 1773 of the Code of Criminal Procedure outlines that an appeal may be taken to the Supreme Court after the final order of a court upon the return of the writ of habeas corpus. The party eligible to appeal is the one aggrieved by the outcome of the lower court.
Rights of Counsel
The flipside of the right to have counsel outlined above is the right for counsel to provide representation. If someone is indigent, then this person can apply to have the court assign counsel to that person for a criminal trial. However, this does not automatically happen and it is necessary to apply for this.
There are some requirements for counsel. For example, they have to be registered with the Puerto Rican Bar Association. Further, for capital cases, the Rules of Criminal Procedure set out some minimum requirements pertaining to the experience of counsel.
Counsel is also allowed to attend any interviews of the defendant by the probation officer for the presentence investigation report (Rule 132 of the Rules of Criminal Procedure).
If an arraignment or accusation has already been filed during lineup, then the accused is entitled to the presence of counsel. In this regard, they are not allowed to question the witnesses, but counsel is allowed to listen to all conversations between police and witnesses and inform the police of any rules that are broken (T. 34A Ap. II, § 252.1).
Prima facie all court filings shall be sealed unless otherwise ordered (Rule 106 of the Rules of Criminal Procedure). However, counsel and opposing counsel can gain access to these filings. This implicitly includes a right to information for counsel.
In prison there can still be privileged correspondence between inmates and his attorney, the courts, and government officials (1987 Op. Sec. Jus. No. 45.).
Means of Protecting and Enforcing Rights
Generally, hearsay evidence is inadmissible as evidence pursuant to T. 32A Ap. IV, § 61. A letter containing an out of court statement and attempting to verify this statement is hearsay evidence and thus also inadmissible (El Pueblo de P.R. v. Calderón Ivarez). This includes a conviction based on a plea bargain (Mayonet v. Granda).
However, not everything that happens out of court is hearsay evidence. If there is sufficient evidence to substantiate that something occurred, this is not hearsay evidence. The important note is mostly that claims have to be substantiated by evidence, the reliability and validity of which can be tested in court.
Contempt of court is a crime which can be committed in addition to the crime for which the accused is on trial. Contempt can occur for a variety of reasons delineated by law, but the essence is that contempt involves disrespecting the court process in some way. This, on its own, can give rise to serious penalties.
Pursuant to the Penal Code 33 L.P.R.A. § 517, contempt occurs when an individual (not necessarily the one on trial) breaches the peace or utters noise or other disturbance which tends to interrupt the proceedings.
Outside of court, contempt can also arise through willful disobedience against any lawful writ, mandate or order issued by the courts. The refusal to be sworn or properly qualified as a witness can in certain cases also constitute contempt. The same is true of the willful publication of any false or grossly inaccurate report of judicial or quasi-judicial proceedings, as well as the “scurrilous or libelous” criticism of orders/judgements/writs/proceedings of any court.
The penalty for contempt can involve imprisonment not exceeding 30 days or a penalty fine tending to be below 200$. It is at the court’s discretion to award either or both of these forms of punishment under §518.
The accused can also launch a civil action, for example by claiming that a given law, policy or practice by government authorities is unconstitutional.
Pre-Trial Procedure
POLICE PROCEDURES
In Puerto Rico, the police are known both for their corruption and involvement in drug dealing, as well as for the wide-spread police brutality. Puerto Rico has a large police force, the second largest of any state in the U.S.. Systemic police brutality and practices that have long been outlawed in mainland US (such as toxic tear gas) are common in Puerto Rico. Police brutality is known to be worse in poor, Black and Dominican neighbourhoods. The police also systemically fail to investigate domestic abuse allegations, which is especially detrimental in the face of the high numbers of femicides and sexual assault on the island.
| COMPLAINT/INFORMATION |
To make or file information it is unnecessary to obtain judicial consent, as this is reserved only for arrests, searches and seizures (El Pueblo de PR v. José Angel Ortiz Gerena). |
| ARREST, SEARCH AND SEIZURE LAWS | Stop and frisks is a procedure by which the police stops and momentarily detains people on the street, searching them for weapons and other illegal substances. This is a practice that is widely criticised by civil rights organisations but is generally legal within the U.S. subject to local policing regulations. Puerto Rico is an area where stops and frisks are practiced. Under §10 of the Puerto Rico Constitution under Article II, stop and frisk is generally lawful if the agent of the state has reasonable motives to believe that the suspect was armed and dangerous (People v. Díaz). It is possible to perform this even without a warrant. This practice is particularly problematic when combined with subconscious bias or outright racism as is often experienced by Black and Dominican people in Puerto Rico. Arrests are generally only lawful if made via an arrest warrant. This arrest warrant can only be issued by a judicial authority on the basis of probable cause. In this arrest warrant, the person or persons to be arrested need to be specified (§10 of the Puerto Rico Constitution under Article II). Prima facie the accused has a right to privacy. This right to privacy can be infringed by certain investigations into personal matters and arresting or searching individuals. To set this right to privacy aside, it is necessary to obtain judicial assent in the form of a warrant (El Pueblo de P.R. v. Loubriel Serrano). It is important to distinguish between a warrant to arrest a specific person and a warrant to search and seize. Under a warrant to arrest, the police may enter private premises to arrest this person. They can search premises/furniture/objects that is in the immediate reach of the person under arrest, eg. if the arrested person has dropped something on the floor. However, this power should not be construed too broadly. An arrest warrant does not give the police the power to search the property more generally (El Pueblo de P.R. v. Delgado). Puerto Rican law is careful to emphasise that liberty is the norm, and thus any form of detention requires a rigorous justification. Detention prior to trial or without trial can occur, but this is a “carefully limited exception” to the right to liberty. Thus, it is unlawful to detain someone for an unreasonable period before trial according to the Puerto Rican Constitution and the case Pueblo v. Pagán Medina. As Puerto Rico is bound by U.S Supreme Court cases, Zadvydas v. Davis stipulates that pre-trial detention is regulated by “stringent requirements”. As such, careful scrutiny of any form of pre-trial detention is required. Pueblo v. Rivera Colon shows that what exactly is deemed an unreasonable period will depend on the circumstances. The courts have not established a definite upper or lower limit, but it needs to be assessed on a case-by-case basis instead. Unreasonable searches and seizures are prohibited in Puerto Rico pursuant to §10 of the Puerto Rico Constitution under Article II. Wire-tapping is also prohibited. Warrants for arrests or searches and seizures are only issued via judicial authority. The necessary basis for such a warrant to be issued is probable cause supported by oath or affirmation. Search warrants also cannot be given in too vague or general a form. Instead, the particular place to be searched needs to be described and the persons to be arrested or things to be seized need to be specified (§10 of the Puerto Rico Constitution under Article II). The purpose of this law is to forbid prosecuting attorneys from issuing such warrants. Often prosecuting attorneys will go before a judge to obtain such a warrant, however, it is crucial that the warrant does not stem from the prosecuting attorneys themselves but from the judge (Olivo v. Tribunal Superior de Puerto Rico). Prosecuting attorneys cannot act as magistrates. These search warrants need to be somewhat specific. Whilst the degree of specificity required will differ depending on the circumstances, this was obviously violated in a case like El Pueblo de P.R. v. Laclaustra Demandado-Peticionario, where a general search of baggage of all passengers by I.R.S. agents was conducted without a warrant. In general, the police will be expected to have a search warrant if they wish to search someone’s property or home. This is premised on the right to privacy. The right to privacy can be set aside by the judiciary in the form of a warrant, or it can be set aside by law in specific cases, such as in the case of a stolen automobile as this can be searched without a warrant (El Pueblo de P.R. v. Delgado). However, caution needs to be exercised in this regard again, as the mere commission of a minor traffic offence does not give police the right to search the vehicle (Marxuach v. Tribunal Superior de P.R.). An important exception to this is that in the case of a threat or emergency situation the need for warrants can be dispelled with. This is, however, a high burden to prove and generally without a warrant any searches or seizures will be both illegal and unconstitutional. To request a warrant, it is necessary to have reasonable motive or probable cause. Mere memory of something is insufficient in this regard (El Pueblo de P.R. v. Calderón Díaz). At times the police may wish to conduct specific searches, such as of boats entering the ports or at arrivals in airports. Generally, a warrant issued will not be general enough to allow the police to search everyone or to search people at random, as seen above. If they wish to do so, they will need to coordinate with federal customs officers or resort to applying to an administrative registry (E.L.A v. Coca Cola Bott. Co). Even if someone gives consent to be searched, this must be treated with caution. The validity of such consent will be evaluated in the totality of circumstances that it was given in (138 D.P.R. 686.). This means that if the accused was pressured to consent to the search, or mislead, or in a situation in which there was a clear power imbalance and they were vulnerable, it is generally unlikely that a court will consider the search, and the evidence obtained through it, admissible at trial (People v. Pérez Olmo). Evidence obtained unlawfully, i.e. without a valid warrant, will generally be inadmissible at trial. Seizure without a warrant gives rise to a presumption of invalidity (People v. Lebron). |
| LINEUPS AND OTHER IDENTIFICATION PROCEDURES |
There are specific lineup procedures to be followed for the purpose of identifying a possible perpetrator of a criminal act. These procedures are provided by T. 34A Ap. II, § 252.1. If an arraignment or accusation has already been filed during lineup, then the accused is entitled to the presence of counsel.
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| INTERROGATION | The accused has the right to have counsel present both during trial and during pretrial interrogations (Kansas v. Ventris).
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Court Procedures
| PRE-TRIAL | Unless otherwise specified, the pre-trial court procedure for criminal trials is the same as for civil trials (Rule 112 of the Rules of Criminal Procedure). As such, it is governed by Rules 5, 6, 7, 10, and 11 of the Rules of Civil Procedure.
Consistent with the Speedy Trial Act, as early as possible before trial an initial status conference should be conducted by the court. Additional status conferences can be scheduled at any time. These conferences serve the purpose of discussing any motions filed, issues that might cause delay, setting a trial date, discussing witnesses, deciding on undisputed facts, the number and use of peremptory challenges, any special trial arrangements such as seating arrangements, and other procedural issues for the trial (Rule 117.1 of the Rules of Criminal Procedure). Pursuant to Rule 159 of the Rules of Criminal Procedure, judges are typically responsible for running and organising preliminary hearings and status conferences. It is possible to file a pre-trial motion of impoundment if either party desires for parts of the trial or documents to be kept confidential. Under Rule 116C of the Rules of Criminal Procedure, this motion must be sought before the material that is to be impounded is submitted. A motion for impoundment must be presented each time a document or group of documents is to be filed. All motions should be filed including citations and supporting authorities (Rule 147 of the Rules of Criminal procedure). The opposing party always has 14 days after the motion’s filing to write a written opposition. If the opposing party fails to do this, it is deemed to have waived the right for objection. Pursuant to Rule 116 of the Rules of Criminal Procedure, the government may voluntarily disclose within 30 days after arraignment all material discoverable. Counsel is under a duty to confer to eliminate or narrow areas of disagreement. If this is not possible, then a discovery motion should be filed within 14 days of the opposing party’s reply to the discovery request. The opposing party then has 14 days to file a response. All parties are also under a continuing duty to supplement prior disclosure if they realise that it was inaccurate or incomplete. Under Rule 117 of the Rules of Criminal Procedure, the court has to make available at least one copy of all recordings available for examination. Following a request for discovery, the attorney of the government must inform all enforcement agencies that were involved in the criminal investigation regarding the discovery request and obtain all relevant information from them (Rule 116B of the Rules of Criminal Procedure). |
| TRIAL | These statements are true for jury and non-jury trials pursuant to Rule 123 of the Rules of Criminal Procedure. Opening statements are non-argumentative and below 30 minutes in length. The examination of witnesses occurs by one attorney for each party. All exhibits should be filed before trial. Pursuant to Rule 162 of the Rules of Criminal Procedure, attorneys have different powers. Their signature to a pleading shall constitute an appearance. They can also file a formal written appearance, but the signature to a pleading is the traditional way of attorneys gaining access to a court trial. Trial counsel also has a duty to continue to represent the defendant on appeal until relieved by the Court of Appeals. Aside from managing the trial and reaching judgements in the absence of a jury, judges may also have the additional roles of: supervising criminal calendars, running status conferences (above), conducting hearings, accepting waivers of indictment, issuing subpoenas and writs of habeas corpus, and approving surety bonds in criminal cases (Rule 159 of the Rules of Criminal Procedure). They can also conduct a verification of consent by offenders to transfer from and to the United States, conduct preliminary hearings, order the preparation of presentence reports, conduct mental competency hearings, hear and determine motions, approve attorney’s expense vouchers, issue arrest and search and seizure warrants, and conduct jury selection. |
| SENTENCING | Sentencing shall be held without unnecessary delay (Rule 132 of the Rules of Criminal Procedure). The probation officer shall present a presentence investigation report. This presentence investigation report includes a detailed written version of the facts (provided by the government to the probation officer). This presentence investigation report must be presented to counsel for both parties at least 35 days prior to the scheduled sentencing hearing. The parties are encouraged to independently seek resolution of any disputed matters in this report. The revised report will then be disclosed. |
Rights in Prison
The Constitution of Puerto Rico’s Bill of Rights is modeled on the Universal Declaration of Human Rights rather than the US Constitution and thus it is ostensibly modulated towards protecting human rights. Puerto Rico is also the only country to enshrine a right to bail in their constitution.
Despite this, the conditions in Puerto Rico’s prisons are known to be abysmal. Among the problems there are violence, overcrowding, lack of sanitation and an absence of medical assistance in Puerto Rico’s prisons. Further, whilst Puerto Ricans retain the right to vote even if imprisoned, this rings hollow in comparison to the routine human rights violations in Puerto Rico’s prisons.
The judiciary is legally required to defer to the Correctional Administration’s assessment regarding the classification of prisoners, for example into a maximum-security prison (Cruz Negrón v Administración de Correción).
Puerto Rico has 34 prison facilities and around 10 000 prisoners.
The Correctional Administration is responsible for regulating prisons and the conditions within them. It has a constitutional mandate for rehabilitation of prisoners. In this regard, rehabilitation should be their highest priority by law under PR. ST. T. 4. §1112. This suggests that prisons with lesser capacity should be created. It also requires them to provide individualized treatment and keep individualized records of inmates.
The Constitution and the laws of Puerto Rico more generally provide strict rules related to overcrowding of prisons and other cruel and unusual treatment (Morales Feliciano v. Romero Barcelo).
In prison there can still be privileged correspondence between inmates and his attorney, the courts, and government officials (1987 Op. Sec. Jus. No. 45.).
Inmates should also undergo period evaluation by the Correctional Administration in relation to their social, physical, emotional and mental state and criminal background pursuant to PR. ST. T. 4. §1121.
Whilst all of these measures are technically in place, it is important to realise that the law does not necessarily reflect reality. There are routine reports of overcrowding, violence, and inadequate medical care in Puerto Rico’s prisons. Plans for relocating inmates or reducing the capacity of prisons are often not realized. It appears that there are significant issues both in the day-to-day operation of prisons, as well as in the oversight and reporting of the day-to-day operation.
Prima facie there is a right to medical care in prison, as provided by PR. ST. T. 4. §1112. This requires the Correctional Administration to provide “appropriate medical care and hospital services intended to prevent diseases and the diagnosis, treatment and rehabilitation of the patient”.
There has been some case law in relation to “deliberate indifference” by prison. This involves either violence between inmates or medical conditions of inmates that were ignored or inappropriately treated. The general standard of medical care provided has also been described as inadequate (Miranda v. Munoz).
The primary responsibility for medical care and hospital services “to the insane and mentally retarded” lies with the Department of Health rather than the Correctional Administration.
By law, if a mental health condition of an accused individual is severe, they should be sent to a specific institution and not the regular prisons.
Inmates in Puerto Rico’s prisons are still eligible to vote in elections. Privileged correspondence with attorneys is also possible. However, the practical reality of prisoner’s day-to-day life is naturally greatly restricted by virtue of it being a prison. This is further amplified by the routine overcrowding, violence, and negligence of correction officers that prisoners report.
- Women
Female prisoners only made up 3.7% of the prison population in 2018. There are specific prisons for women, such as the Escuela Industrial para Mujeres in Vega Alta. However, some prisons also house both male and female inmates, such as the maximum-security prison MDC Guaynabo. This is a federal prison, meaning that it is run by the US Government rather than Puerto Rican authorities.
More typically women are the victims of violent attacks. Puerto Rico has been reporting a high number of femicides and has tried, relatively unsuccessfully, to curb this via legislative measures.
- LGBT+ Prisoners
Being LGBT+ is not a crime in Puerto Rico. However, LGBT prisoners may still face discrimination and violence in Puerto Rican prisons, especially stemming from the country’s strong Catholic belief.
- Mentally Ill Prisoners
If prisoners are mentally ill to the extent that they could not reasonably be considered responsible by law for their crimes, they will typically be incarcerated in a forensic center rather than a regular prison. However, places are limited and there are reports of many mentally ill prisoners being kept in regular prisons with no form of special treatment. Mental health care in prisons is very limited and generally considered inadequate.
- Juveniles
Juveniles make up 1.9% of the prison population in 2018. Juveniles are supposed to receive education even whilst in prison, but reports indicate that this is not always realized. Whilst the training centers where juveniles are typically located to in the end do provide education, at first juveniles will be placed in one of three detention facilities. These detention facilities do not provide education. Often juveniles remain in these detention facilities for much longer than anticipated, ranging months and sometimes even years.
