Right of Defense and the Defendant’s Statement

The right of defense is an essential principle in Spanish criminal proceedings, protected by Article 24 of the Spanish Constitution. It guarantees that anyone accused can properly defend against the charges. This right means the defendant must be informed of the facts imputed to them, may present and challenge evidence, and has the right to legal assistance at all stages of the proceedings. The Criminal Procedure Act (LECrim) develops this right by allowing the defendant to take part in trial to present their version of events and, under Article 701, gives the court flexibility to set the order of proof as needed. In this way, the rules aim to preserve fairness without harming the defendant’s ability to defend themselves.

Regarding the defendant’s statement, there is no absolute right to testify last. Case law holds that this is not essential for an effective defense. The Supreme Court has reiterated that the defendant’s right to the last word at the end of trial is sufficient to safeguard the defense, since it allows them to comment on and rebut the evidence and arguments presented against them. This ensures that, even if the court sets the order of proof, the defendant still has an effective mechanism to exercise their defense without disrupting the normal course of the trial. In addition, the principles of equality of arms and adversarial process ensure both sides can present their arguments on equal terms, maintaining impartiality and protecting the defendant’s right to a full and fair defense.

Order of Taking Evidence

The order in which evidence is taken at trial is expressly regulated by Article 701 LECrim. Under this rule, the order of statements and other evidence is flexible, and there is no requirement that all defendants testify at the very end. In practice, defendants often testify at any point during the evidentiary phase, always under the court’s direction, which must ensure respect for the right of defense and equality of arms.

Denying the request to testify last was not considered a violation of the right of defense. That right is satisfied by allowing the defendant to present their version by the end of the hearing, while all parties retain the ability to present evidence and cross-examine witnesses.

Implications of the Right of Defense at Criminal Trial

The right of defense is closely tied to equality of arms and adversarial process, which guarantee each side can present its case fairly and that evidence is assessed objectively. The Supreme Court reiterates that the order of proof should not materially affect these rights. Refusing to let the defendant testify last does not prevent them from challenging the evidence nor limit their ability to counter the prosecution’s arguments.

In this case, the defendants were able to use their right to the last word, which allowed them to speak after hearing the prosecution’s arguments and the evidence presented. This procedural safeguard ensures the defendant can mount an effective defense even without waiting to testify at the very end.

Facts

Supreme Court Judgment 782/2024 concerns a criminal case for the abuse and murder of a minor. The accused are the child’s mother and her partner. The Alicante Provincial Court convicted the partner of a crime of abuse of a minor and a crime of murder with the aggravating factors of treachery and kinship. The mother was convicted of abuse of the minor but acquitted of murder and negligent homicide.

The trial was held before a Jury Court. The defense asked that the accused be allowed to testify at the end of trial, after all evidence had been presented, claiming it was essential to his defense. The presiding judge denied the request and applied the general order in Article 701 LECrim. The defense appealed to the High Court of Justice of the Valencian Community, which dismissed the appeal and upheld the judge’s decision. The defense then filed a cassation appeal with the Supreme Court, arguing a violation of the right of defense and the improper refusal of a psychiatric expert report that the defense considered key to assessing the accused’s credibility.

Grounds of the Cassation Appeal

The defense argued that denying the accused the chance to testify last undermined the right of defense. In their view, the accused should have been able to hear all the evidence and witness testimony before giving his statement. The defense also challenged the refusal to admit a psychiatric expert report deemed essential to evaluate the accused’s credibility and state of mind at the time.

They further argued that refusing to allow testimony at the very end harmed equality of arms, placing the accused at a disadvantage relative to the prosecution.

Supreme Court’s Analysis

The Supreme Court addressed the alleged right to testify last and its link to the right of defense. First, it reiterated that procedural rules, specifically Article 701 LECrim, are designed to ensure impartiality, truth-finding, and procedural equality. Under this provision, the accused does not hold an absolute right to testify last, because the order of procedural interventions follows a legislative design and there is no explicit change that guarantees such a right.

Although in some cases courts have allowed defendants to testify last as a way to protect the defense, the Supreme Court stressed this is neither a legal obligation nor a fundamental procedural right. Thus, the presiding judge’s refusal did not violate fundamental rights, because the defense was adequately protected by the defendant’s right to the last word at the end of trial. This constitutional right (Article 24) allows the accused to address the court after all evidence has been presented.

The Court also emphasized that the last word is a fundamental safeguard of the right of defense. Even if the defendant does not testify last during the evidentiary stage, the last word ensures they can present their account and respond to the evidence. In this case, contradictions in testimony and expert evidence were already available to the defense, so the denial of testifying last did not prevent an effective defense. The Court concluded that the general order in Article 701 LECrim does not infringe the right of defense, given other available mechanisms to ensure a full defense.

Procedural Order and Equality of Arms

Regarding equality of arms, the Supreme Court reaffirmed that criminal proceedings must provide both sides the same opportunities to present their case. The procedural order is not designed to favor either side but to ensure that all evidence and arguments are presented in an orderly and fair manner.

Article 701 LECrim sets a default order for taking evidence, but it is not a rigid rule that would block protection of the right of defense. Equality of arms means both sides may intervene fairly; it does not grant either side a right to a specific speaking order. The presiding judge’s decision therefore fits within the legal framework and does not breach this principle.

Right of Defense and the Order of the Defendant’s Testimony at Trial: Analysis of Supreme Court Judgments STS 714/2023 and STS 782/2024

The defendant’s right of defense is a pillar of a fair trial. A key aspect is when the defendant may testify, especially in relation to the taking of evidence. Recent Supreme Court decisions have addressed the scope and limits of the defendant’s order of intervention.

1. STS 714/2023 (Sept. 28, 2023).
2. This ruling introduced an important interpretation: in the absence of a specific LECrim provision requiring the defendant to go first, the defense may request that the defendant testify at the end, after the evidence. Allowing testimony at the end can strengthen the defense by letting the accused respond in an informed way to the evidence presented.
3. STS 782/2024 (Sept. 19, 2024).
4. This judgment qualifies the above by holding that a court’s refusal to allow testimony at the end does not automatically violate the right of defense. The Supreme Court clarifies that, while the defense may request it, a judge’s decision to the contrary does not in itself impair the defense. The Court stresses that the right to the last word remains a sufficient safeguard, though it is not a moment for questioning by the parties, but rather a closing statement by the accused.

Taken together, these decisions show a dual approach: STS 714/2023 highlights the benefit of testimony at the end, while STS 782/2024 finds the last word sufficient to safeguard defense rights without changing the order of proof.

Conclusion

Supreme Court Judgment 782/2024 reaffirms that, although the defendant’s right of defense is fundamental, it does not include an absolute right to testify last. The decision interprets Article 701 LECrim as allowing a flexible order for evidence to keep the trial orderly and fair without compromising the rights of the parties.

The Court holds that refusing testimony at the end does not violate the right of defense so long as the defendant is granted the last word before the verdict. This allows the accused to comment on the evidence and arguments against them and to defend themselves at the close of the proceedings, in line with Article 24 of the Constitution. The Court also underscores the principle of equality of arms, ensuring both sides have equal procedural opportunities. The last word is sufficient to protect the defense, making it unnecessary to change the order of proof.

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