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The right of defence is an essential principle in Spanish criminal proceedings, protected in Article 24 of the Spanish Constitution, which guarantees that every accused person can adequately defend himself or herself against the charges against him or her. This right implies that the accused has the right to be informed of the facts of the case, to present and contradict evidence, and to receive legal assistance at all stages of the judicial process. The Criminal Procedure Act (LECrim) develops this right by allowing the accused to intervene in the trial to present his or her version of the facts, and, according to article 701, grants flexibility to the court to determine the order of evidence according to the needs of the case. In this way, the rules guarantee a trial in which fairness is preserved without prejudicing the defence possibilities of the accused.
As for the accused's statement, although there is no absolute right to testify last, case law establishes that this possibility is not essential to ensure an effective defence. The Supreme Court has reiterated that the defendant's right to the last word, at the end of the trial, is sufficient to safeguard his defence, allowing him to comment on and refute the evidence and arguments presented against him. This ensures that, even if the court determines the order of evidence, the accused retains an effective mechanism to exercise his or her defence without disrupting the normal course of the trial. In addition, the principle of equality of arms and adversarial proceedings ensures that both sides can present their case on an equal footing, preserving the fairness of the proceedings and protecting the accused's right to a full and fair defence.
The order of the taking of evidence in trials is explicitly regulated in Article 701 of the LECrim. According to this rule, the order of statements and other evidence is established in a flexible manner, without the need for all defendants to testify at the end of the trial. In fact, in judicial practice, it is common for defendants to testify at any time during the evidentiary phase, always under the direction of the Court, which must ensure that the right of defence and equality of arms are respected.
The decision to deny the possibility to testify last was not considered as a violation of the accused's right to defence. This right is considered to be satisfied by the possibility to express his version of the facts at the end of the trial, just as all those involved have the right to present evidence and cross-examine witnesses.
The right to a defence is closely linked to the principles of equality of arms and contradiction, which guarantee that all parties can present their arguments fairly and that evidence is assessed objectively. In this sense, the Supreme Court reiterates that the order of evidence should not substantially affect the exercise of these rights. The refusal to testify at the end does not prevent the accused from being able to controvert the evidence against him or limit his ability to refute the arguments of the Public Prosecutor's Office.
Indeed, in this case, the defendants were able to take advantage of their right to the last word, allowing them to express their defence in full knowledge of the prosecution's case and the evidence presented. This is a procedural mechanism that ensures that the accused can articulate their defence effectively, even without having to wait until the end of the trial.
In this case, Supreme Court Ruling 782/2024 refers to a criminal proceeding initiated for the crime of abuse and murder of a minor, where the defendants are the minor's mother and the mother's romantic partner. The Provincial Court of Alicante convicted the accused, the mother's partner, of committing a crime of ill-treatment of a minor and a crime of murder with aggravating circumstances of aggravated aggravation and kinship. As for the child's mother, she was convicted of ill-treatment of the child, but acquitted of the charges of murder and reckless homicide.
The trial was conducted before the Jury Court, and the defendant's defence requested that he be allowed to testify at the end of the trial, after all the evidence had been heard, arguing that this was essential to his right of defence. The President of the Court, however, denied this request, applying the general order foreseen in article 701 of the Criminal Procedure Law (LECrim), which led to an appeal to the High Court of Justice of the Valencian Community, which rejected the request, ratifying the decision of the President of the Court. Faced with this decision, the defence filed an appeal in cassation before the Supreme Court, focusing on the violation of the right of defence and the inadmissibility of psychiatric expert evidence that the defence considered key to assessing the defendant's credibility.
The defence in its cassation appeal argued that the refusal to allow the accused to testify last compromised his fundamental right of defence. According to the defence, the accused should have been given the possibility to acquaint himself with all the evidence presented and the witness statements in order to be able to formulate his statement with full knowledge of the facts. Furthermore, the non-admission of a psychiatric expert evidence which was considered essential to assess the defendant's credibility and to understand his mental state at the time of the events was questioned.
On the other hand, the defence also argued that the refusal to allow the accused to testify last affected procedural equality of arms, since, in their view, preventing the accused from having that opportunity placed him at a disadvantage vis-à-vis the prosecuting parties.
The Supreme Court addressed the issue of the right to testify last and its relationship with the right to defence. Firstly, the High Court reiterated that procedural regulations, specifically article 701 of the LECrim, establishes that the order of evidence is designed to guarantee the impartiality of the trial, the discovery of the truth and procedural equality. According to this precept, the accused party does not have the absolute right to testify at the end of the trial, as the order of procedural interventions follows a logic established by the legislator, without there being an explicit modification that guarantees this power as an unquestionable right.
Although in some cases the accused has been allowed to testify last as a measure to protect his right of defence, the Supreme Court emphasised that this possibility is neither a legal obligation nor a fundamental procedural right. In this sense, the refusal of the presiding judge to allow the defendant to testify last did not violate the defendant's fundamental rights, as the right of defence was duly protected by the defendant's last word at the end of the trial. This right, which is guaranteed by Article 24 of the Constitution, allows the accused the opportunity to address the Court after the presentation of all the evidence.
The Supreme Court further underlines that the right to the last word of the accused at the end of the trial is a fundamental right that guarantees the protection of the right of defence. The Court emphasises that, even when the accused is unable to testify last before the taking of evidence, the exercise of his right to the last word is a sufficient safeguard to ensure that the accused has the opportunity to present his version of the facts and to refute the evidence presented against him.
In the specific case, the Court emphasises that the contradiction in the testimonies and the expert evidence were already available to the defence, so that the refusal to testify last is not considered to have affected the possibility for the accused to exercise his right of defence in an effective manner. The Court concludes that the general procedural order established in article 701 of the LECrim does not infringe the accused's right to defence, as he has other procedural mechanisms at his disposal to ensure a full defence.
With regard to the principle of equality of arms, the Supreme Court reaffirms that the criminal process must ensure that both parties, the defence and the prosecution, have equal opportunities to present their case. The procedural order is not designed to favour one party to the detriment of the other, but to ensure that all evidence and allegations are presented in an orderly and fair manner.
Article 701 of the LECrim establishes that the taking of evidence must follow a certain order, but this order is not a rigid rule that prevents the right of defence from being guaranteed. The principle of equality of arms implies that the parties can intervene equally, but it does not mean that each party has the right to a specific order in which to testify. The decision of the President of the Tribunal is therefore in line with the normative framework and does not violate this principle.
The right of defence of the accused in criminal proceedings is one of the fundamental pillars of a fair trial. A key aspect of this right is the moment at which the accused can testify at trial, especially in relation to the taking of evidence. This issue has been the subject of debate in recent Supreme Court rulings interpreting the scope and limitations of the defendant's order of intervention at trial.
1. Ruling STS 714/2023
STS 714/2023, of 28 September, introduced a relevant interpretation of the order in which the accused may testify at trial. In its ruling, the Supreme Court established that, in the absence of a specific provision in the Criminal Procedure Act (LECrim) ordering the accused to speak first, the defence has the right to request that his statement be made last, after the evidence has been heard. This position is based on the idea that allowing the accused to testify last can strengthen his right of defence, giving him the opportunity to respond to the evidence presented against him in an informed and complete manner.
2. The STS 782/2024 Judgment
STS 782/2024, of 19 September, qualifies this interpretation, stating that the court's refusal to allow the accused to testify last does not automatically violate his right of defence. In this judgment, the Supreme Court clarifies that, although the defence may request that the accused testify after the evidence, the fact that a judge decides otherwise is not considered an infringement of the right of defence.
The Court emphasises that even if the accused does not testify at the end, the right to the last word is a sufficient safeguard to present his version of the facts and respond to the evidence. However, it is important to note that, in this right to the last word, no cross-examination of the parties is allowed, but only a concluding statement by the accused.
These two rulings evidence a dual interpretation of how the right of defence should be protected in relation to the order of the accused's testimony. STS 714/2023 highlights the importance of the accused being able to testify last in order to optimise his defence, while STS 782/2024 considers the right to the last word sufficient as a guarantee that the accused can respond to the evidence without the need for a final interrogation.
In conclusion, Supreme Court Ruling 782/2024 reaffirms that, although the defendant's right of defence is fundamental, it does not imply an absolute right to testify last at trial. This ruling interprets article 701 of the Criminal Procedure Act (LECrim), which allows for a flexible framework for the order of evidence. This flexibility is justified to ensure an orderly and fair trial without compromising the rights of the parties involved.
The Supreme Court considers that denying the last statement does not violate the defendant's right of defence, as long as the defendant is given the last word before the ruling. This final intervention allows the accused to comment on the evidence and the arguments against him, ensuring his ability to defend himself adequately at the close of the trial. This mechanism respects the rights protected by Article 24 of the Spanish Constitution, allowing for a full defence without the need to alter the established procedural order.
Finally, the Court underlines the relevance of the principle of equality of arms, which guarantees that both the defence and the prosecution have equal procedural opportunities. The order provided for in Article 701 of the LECrim does not favour any party, but seeks to preserve the objectivity and impartiality of the judicial process. In this sense, the last word of the accused is a sufficient tool to safeguard his or her right of defence, making it unnecessary to modify the order of evidence and allowing the criminal proceedings to develop in a fair and balanced manner.
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