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

Right Against Unlawful Arrests, Searches, Seizures:
§ 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

Right against unlawful detention:
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.

Right to be Informed of Charges:
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”.

Right to Presumption of Innocence:
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).

Right Against Self-Incrimination:
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.

Right to counsel and effective assistance:
§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.

Right to Present a Defence:
§11 of the Code of Criminal Procedure also implicitly includes the right to present a defence by yourself or via legal counsel.

Right to Due Process:
§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.

Right to Equal Protection of the Laws:
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.

Right to Bail:
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.

Right Against Ex Post Facto Prosecution:
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).

Right Against Double Jeopardy:
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.

Right to a Fair Trial:

• 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.

Right to Language Interpretation:
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.

Right to Habeas Corpus:
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:
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.

Right to Appeal:
§ 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

Right to provide representation
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).

Right to information
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.

Right to confidential communication with the client
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

Exclusionary rule

Nullity of Procedure

Contempt

Pre-Trial Procedure

POLICE PROCEDURES

Complaint/Information

Arrest, Search and Seizure Laws:

ARRESTS

SEARCHES AND FRISKS

PRE-TRIAL DETENTION

Interrogation:

Court Procedures

PRE-TRIAL
TRIAL	Nature of the Trial Lawyers Judges
SENTENCING

Rights in Prison

Right to Humane Conditions of Confinement

Right to Medical Care in Prison

Right to Mental Health Care

Restriction of Rights

Rights of Special Populations

• Women
  
  
• LGBT+ Prisoners
  
  
• Mentally Ill Prisoners
  
  
• Juveniles

Resources