AWAY FROM UTTER DARKNESS: DUE PROCESS AND THE RIGHT TO A HEARING, AN AMPLE DEFENSE, AND CROSS-EXAMINATION IN MEXICO, BRAZIL, AND THE UNITED STATES

Abstract

Beyond generally reflecting on the core concept that titles this piece, the succeeding sections will study in turn the rights to a hearing in Mexico and to an ample defense, coupled with a cross-examination, in Brazil. They will do so not in the abstract but rather by evaluating how these entitlements play out concretely and by pinpointing a prominent and possibly pivotal lawsuit. The discussion will employ common-law-style names to denote the focal opinion in each instance: (1) Melgar Castillejos v. President of the Republic and (2) Villarinho v. Brazilian Union of Composers. In the Mexican controversy, the federal judges at all levels aggressively developed due process in a manner that parallels major developments north of the border. Remarkably, they applied it, beyond its original criminal realm of application, to the subsequently salient sphere of civil and pretrial adjudication. In the second dispute, their colleagues from Brazil transported the guaranty to a terrain thus far unknown or in fact off-limits in the United States: that of the purely private sector. In all, these precedents seem to signal that the time might have arrived for the direction of transcontinental influences to shift northward, at least occasionally.