A GUIDE FOR U.S. CITIZENS ARRESTED IN MEXICO
(Please Note-The information provided herein is meant as general guidance only and may not apply fully to your particular situation. Specific questions about interpreting Mexican law should be addressed to competent Mexican lawyers.)
INTRODUCTION: WHAT YOU NEED TO KNOW ABOUT MEXICO
Mexico’s legal system differs from that of the U.S. in a number of important ways that any U.S. citizen accused of a crime in Mexico needs to understand. Most importantly, many of the legal rights and protections that U.S. citizens enjoy at home do not apply in Mexico and punishments for many crimes are more severe. Worldwide, Mexico has the highest number of arrests of U.S. citizens abroad and the largest U.S. prisoner population outside the United States.
KEY DIFFERENCES BETWEEN U.S. AND MEXICAN LAW
A fundamental difference between the U.S. and Mexican legal systems is that Mexico is a "civil law" country while the U.S. is a "common law" country. Common law emphasizes case law relying on judges’ decisions in prior cases. In contrast, Mexico's civil law system is derived primarily from Roman law and the Napoleonic Code and focuses more on the text of actual laws than on prior court decisions. In the U.S., even one case can establish a legal principle and lawyers need to analyze many cases to interpret the law. In Mexico, one studies the law and makes the best argument given the facts. “GUILTY UNTIL PROVEN INNOCENT”
For an accused person, one of the most critical differences is that under Mexican criminal law, the accused is essentially considered guilty until proven innocent. Mexico does not allow bail on personal recognizance and therefore a cash bail must be posted (which may not be available depending on the potential sentence). Many activities that are not considered crimes in the U.S. may be crimes in Mexico. Additionally, the role of judges in Mexico is broader than in the U.S. Mexican judges are active in developing a case and gathering evidence. In the absence of jury trials, judges also make the ultimate decisions about the innocence or guilt of an accused. BEING ARRESTED IN MEXICO
When you are arrested you have the right to contact your consular representative. The authorities should both inform you of this right and provide access to make the contact. The U.S. Consulate in Tijuana will provide you with an overview of Mexican law and a list of attorneys and, at your request, contact friends or relatives to advise them of the situation. However, the Consulate cannot provide legal counsel or interfere in the due process of law. Please note that, pursuant to the Privacy Act of 1974, a consular representative cannot release information about your case without your consent.
If you are arrested for a serious crime in Mexico, the police will turn you over to the agente, or district attorney’s office which could be state or federal, depending on the charge (Serious crimes under federal jurisdiction include, for example: drug possession, alien smuggling, certain firearms/ammunition charges, and possession of counterfeit money. Serious state crimes include: homicide, kidnapping, rape, assault, theft, child pornography, corruption of a minor, driving under the influence breaking/entering, possession of a deadly weapon and property damage.) The district attorney’s office will then conduct a preliminary investigation to determine if the case should be prosecuted. If they decide to prosecute, the case will be turned over to a judge. The DA’s office, state or federal, can keep you in custody up to 48 hours (unless they receive an extension) before deciding whether to charge you. By the end of the 48-hour period, the district attorney must turn your case over for prosecution, set bail, or drop the charges and release you. If bail is not set, or if it is set but you can’t pay it, your case...