Criminal Litigation

The Adversarial Accusatory System and its Implications for the Accused

March 15, 2026 — Enrique Benet-Gregg

The Adversarial Accusatory System and Its Implications for the Defendant

The transition from the mixed inquisitorial system to the adversarial accusatory model, consolidated in Mexico through the constitutional reform of June 2008 and operationalized through the National Code of Criminal Procedure (CNPP, published in the Official Gazette of the Federation on March 5, 2014, with amendments in force as of 2025), structurally redesigned the position of the defendant within the process. For investors, developers, and business operators functioning in complex regulatory environments, understanding that position is not an abstract concern: it is a critical component of legal risk management.

Executive Summary: What Every Business Operator Must Know Before Reading This Article

Crimes of a patrimonial, fiscal, and corporate nature, including generic fraud, equated tax evasion, asset laundering, and operations with illicit proceeds, generate scenarios in which investors and managers can rapidly acquire the status of defendants. Three risks are especially critical for the business operator in Mexico. First, criminal liability is channeled toward natural persons, managers, and representatives, not toward the legal entity as an imputabl entity under the CNPP. Second, corporate assets may be subject to forfeiture in a manner parallel and independent to the criminal process, without the need for a conviction sentence. Third, defensive intervention from the initial investigation stage, prior to the initial hearing, frequently determines whether the matter ends in an alternative resolution or in an oral trial with risk of pretrial detention. The following sections develop the procedural framework that supports these conclusions.

The Principle of Procedural Equality and Its Practical Impact

Article 20, section A, of the Political Constitution of the United Mexican States (CPEUM) establishes the governing principles of the system: publicity, contradiction, concentration, continuity, and immediacy. The principle of contradiction, also included in article 6 of the CNPP, is the axis around which the rights of the defendant revolve. It implies that all evidence offered by the prosecution may be refuted, cross-examined, and contested by the defense under conditions of parity. This right is not merely declarative: its effective exercise depends on the technical preparation of the defense counsel and on timely intervention at each procedural stage.

Procedural Stages and Strategic Intervention Points

The CNPP structures the process in three major phases, each with windows of action that, if not seized, close irreversibly.

Initial Investigation and Formalized Investigation

The investigation stage is divided into two differentiated moments in accordance with the framework of article 211 of the CNPP, which establishes the general stages of the procedure, in relation to articles 212 and 213 of the same ordinance, which operationally codify the distinction between non-formalized and formalized investigation: the initial investigation, which runs from when the Public Ministry (MP) becomes aware of the criminal act until the defendant appears before the control judge, and the formalized investigation, which begins with the initial hearing. In the former, the defendant may not be aware that he is being investigated. However, from the moment there exists any investigative act that affects him, article 131, subsection II of the CNPP imposes on the MP the obligation to inform him of his rights when he is detained.

The initial hearing, regulated in articles 307 to 313 of the CNPP, concentrates decisions of high impact: qualification of the detention, formulation of charges, linking to the process, and crucially, the discussion of precautionary measures. Article 155 of the CNPP catalogs such measures, from periodic appearance before the authority to justified pretrial detention.

With respect to pretrial detention, it is essential to distinguish two regimes with substantially different constitutional logics and defensive strategies.

Regarding justified pretrial detention, provided for in article 19, second paragraph of the CPEUM as a measure of a discretionary character subject to request by the Public Ministry, the First Chamber of the SCJN has held, in accordance with the doctrinal criterion derived from the line of jurisprudence on proportionality of precautionary measures developed following the constitutional reform of 2019 to article 19 CPEUM, that its imposition must observe the principle of proportionality and be based on concrete evidentiary data. The abstract gravity of the crime does not constitute sufficient grounds for its imposition. This standard enables the defense to contest requests that lack individualized evidentiary support, questioning both the necessity and the suitability and strict proportionality of the measure in each case.

The regime of mandatory preventive detention, also provided for in article 19, second paragraph of the CPEUM, operates in a radically different manner: its imposition is automatic for the closed catalog of offenses that the constitutional provision itself enumerates, without the control judge having any margin of discretion regarding the appropriateness of the measure. The defensive strategy against mandatory preventive detention cannot be directed, in the ordinary scope, at demonstrating absence of proportionality in the same terms as in justified detention. In this area, the relevant legal debate is situated in the compatibility of the constitutional catalog with the standards of the inter-American human rights system. The Inter-American Court of Human Rights, in the Case Tzompaxtle Tecpile and others vs. Mexico (judgment of November 7, 2022), determined that automatic preventive detention linked to the criminal type, without individualized risk evaluation, is incompatible with articles 7.3 and 7.5 of the American Convention. The SCJN has had subsequent pronouncements on the tension between the constitutional mandate of article 19 and the conventional obligations derived from that judgment, without there being to date a definitive and uniform resolution. For the business operator exposed to offenses in the catalog, the relevant defensive strategy includes analysis of the provisional legal classification of the fact to challenge the subsumption in the type that activates the mandatory nature, as well as the exploration of conventional avenues when the case warrants it.

Intermediate Stage

Regulated in articles 334 to 347 of the CNPP, this phase has as its primary function the judicial review of the evidentiary material that will reach oral trial. The intermediate hearing is the procedural setting where the defense can challenge the lawfulness of evidence obtained by the prosecution, request the exclusion of illicit evidence under article 346 of the CNPP, and delimit the disputed facts. Pursuant to the doctrinal criterion derived from the jurisprudential line of the Collegiate Courts of Circuit regarding evidentiary exclusion under the accusatory system, exclusion derived from violations of fundamental rights during the investigation stage cannot be remedied in subsequent procedural stages, which makes the intermediate hearing a point of first-order defensive intervention. This criterion reinforces the need for early defensive intervention from the initial investigation.

Oral Trial

Pursuant to articles 348 and following of the CNPP, the oral trial is the culminating moment of the proceeding. The principles of immediacy and directness oblige the tribunal to form its conviction exclusively from the evidentiary production presented at the hearing. Article 20, section B, fraction II of the CPEUM guarantees the accused the right to testify or remain silent, without the silence being able to be used to their detriment. Likewise, article 20, section B, fraction VIII recognizes the right to adequate defense. The First Chamber of the SCJN has interpreted this right, pursuant to the consolidated doctrinal criterion in the jurisprudential line on adequate and effective defense in the accusatory system, in the sense that technical defense must be effective and materially active, not merely formal or symbolic.

Alternate Resolutions and Abbreviated Procedures

The CNPP contemplates mechanisms for early termination that may be strategically relevant. A superficial analysis of these mechanisms, limited to listing them with their reference articles, is insufficient for the business operator. Each presents eligibility restrictions, specific patrimonial consequences, and risks of spillover effects to parallel proceedings that must be evaluated before adopting any procedural position.

Reparatory agreement (articles 186 to 190 of the CNPP). Its operability is subject to the eligibility restrictions of article 187 of the CNPP, which expressly excludes its applicability when the accused has concluded previous reparatory agreements within the five years prior to the submission of the new request, when it involves offenses that have caused damage or injury to collective or diffuse legal interests, or when the offense is one that does not admit victim forgiveness. For tax or corporate offenses with diffuse patrimonial impact, the viability of the reparatory agreement must be verified on a case-by-case basis with reference to the legal classification of the fact and to the victim’s position in the particular case.

Conditional suspension of the proceeding (articles 191 to 200 of the CNPP). This mechanism requires that the accused has not been convicted of a willful offense in the five years prior and that the offense admits the substitution or suspension of the prison sentence, among other requirements. The conditions imposed during the suspension period may include obligations for damage reparation with direct patrimonial impact. Its analysis requires weighing the duration of the suspension period against the risk of an oral trial.

Abbreviated Procedure (articles 201 to 207 of the CNPP). This is the mechanism with the greatest potential for risk spillover to parallel proceedings and merits special attention from the business operator. Article 206 of the CNPP establishes that the accused must accept their participation in the crime and the facts of the accusation as a condition for accessing the procedure. That acceptance of facts, although produced in the context of a criminal procedural negotiation, may be used as an evidentiary element or evidence in parallel proceedings before the Tax Administration Service (SAT) in audits or determinations of tax credits, before the National Banking and Securities Commission (CNBV) in sanctioning procedures, and in civil actions for damages brought by affected third parties.

By way of concrete example: a real estate developer facing an allegation of aggravated tax fraud who considers the abbreviated procedure route to obtain a reduced sentence must calculate that the acceptance of facts regarding the tax omission declared in the criminal process may be invoked by the SAT in the procedure for determining the corresponding tax credit, eliminating substantive discussion on the questioned deductible concepts. The savings in criminal procedure may result in significantly higher costs in the tax dimension.

Corporate Criminal Responsibility, Extinction of Domain and Business Risk Management

The Mexican federal criminal procedure system does not contemplate the direct imputation of legal entities under the CNPP in the same manner that it permits the prosecution of natural persons. Criminal responsibility is channeled toward individuals who act on behalf of or to the benefit of the entity: managers, administrators, attorneys-in-fact and legal representatives. This structure generates an asymmetry of risk that business operators frequently underestimate: the legal entity may continue operating while its managers face criminal proceedings, but corporate assets remain exposed to parallel mechanisms whose patrimonial impact may be equal to or greater than that of a criminal conviction.

The most immediate and process-independent patrimonial risk is that which derives from the National Law on Extinction of Domain, published in the Official Gazette of the Federation on August 9, 2019. This ordinance establishes an autonomous jurisdictional procedure, processed before specialized judges, through which the State may extinguish the rights of the owner over assets linked to crimes that the law itself enumerates as reference unlawful acts, among which are asset laundering, organized crime, kidnapping, extortion and others. The most critical characteristic of this regime for the business operator is its autonomy with respect to the criminal process: the extinction of domain action may be initiated, processed and concluded with a judgment transferring the asset to the State without a criminal conviction sentence against any person, and even without an identified accused. The evidentiary standard applicable is not that of full proof to destroy the presumption of criminal innocence, but rather the demonstration of the objective link between the asset and the reference unlawful fact.

For the investor with real estate assets, investment accounts or equity participations in operations situated in areas of high organized crime activity, such as the Riviera Maya and the Cancún-Tulum corridor, exposure to extinction of domain is an independent risk that must be managed through robust compliance programs, including enhanced due diligence in identifying the origin of counterparty resources, documentary controls over the legality of acquired assets and internal reporting policies that reduce the possibility that assets remain objectively linked to a reference unlawful fact. The implementation of a compliance program does not eliminate the risk of extinction of domain, but constitutes material evidence of good faith that the asset owner may assert in the corresponding jurisdictional proceeding.

Implications for Investors and Business Operators: Summary and Action

The foregoing analyses converge in three practical conclusions for the business operator. The first is that early defensive intervention, from the initial investigation and before the initial hearing, is frequently determinative of the proceeding’s outcome. The second is that the choice among alternate exit mechanisms, especially the abbreviated procedure, requires an analysis of risk spillover to tax, civil and regulatory proceedings that goes beyond the criminal file. The third is that the most severe patrimonial exposure may come not through the criminal process but through the extinction of domain action, which operates with full procedural autonomy and a different evidentiary standard.

IBG Legal advises domestic and international investors with operations in Quintana Roo and the Riviera Maya in matters of corporate criminal defense, forfeiture of domain extinction risk analysis, and structuring of compliance programs aimed at reducing criminal and patrimonial exposure. Our practice before federal control courts in Cancún and before the Federal Administrative Justice Court includes representation in forfeiture of domain proceedings and in criminal litigations linked to real estate and financial operations of high complexity. For an assessment of criminal risk applicable to your operation, request an initial diagnostic consultation.

Sources and References

Legislation

Political Constitution of the United Mexican States, articles 16, 17, 19 and 20; last amendment published in the DOF on March 22, 2024.
National Code of Criminal Procedure (CNPP), published in the DOF on March 5, 2014; last relevant amendment published in the DOF in 2025. Articles cited: 6, 131, 155, 186–190, 191–200, 201–207, 211, 212, 213, 307–313, 334–347, 346, 348 and et seq.
Federal Criminal Code, published in the DOF on August 14, 1931; last amendment published in the DOF in 2024.
Federal Law for the Prevention and Identification of Operations with Resources of Illicit Origin, published in the DOF on October 17, 2012; last amendment published in the DOF in 2023.
National Law on Forfeiture of Domain, published in the DOF on August 9, 2019.

Jurisprudential and Conventional Criteria

First Chamber of the SCJN: doctrinal criterion derived from the jurisprudential line on proportionality of precautionary measures and justified preventive imprisonment, developed after the amendment to article 19 of the CPEUM published in the DOF on April 12, 2019. In accordance with this line, the imposition of justified preventive imprisonment must be founded on concrete evidentiary data and observe the subprinciples of suitability, necessity, and proportionality in the strict sense; the abstract gravity of the imputed offense does not constitute sufficient grounds. The specific headings and records of the isolated theses or jurisprudence that comprise this line must be verified in the IUS system of the SCJN or in the Federal Judicial Weekly through search by the terms ‘justified preventive imprisonment’ and ‘proportionality’, limited to the period 2019–2025.
First Chamber of the SCJN: doctrinal criterion derived from the jurisprudential line on adequate and effective defense in the adversarial accusatory system, in relation to article 20, section B, fraction VIII of the CPEUM. In accordance with this criterion, technical defense must be effective and materially active; a merely formal or symbolic presence of the defense counsel does not satisfy the constitutional standard. The specific records of the theses that comprise this line are.
Collegiate Courts of Circuit: doctrinal criterion derived from the jurisprudential line on the rule of probative exclusion and chain of custody under the CNPP. In accordance with this criterion, the exclusion of evidence derived from violations of fundamental rights during the investigative stage cannot be remedied in subsequent procedural stages, in accordance with article 346 of the CNPP. The specific records are.
Inter-American Court of Human Rights: Case Tzompaxtle Tecpile and others v. Mexico, judgment of November 7, 2022 (Preliminary Objections, Merits, Reparations and Costs). The Court determined that automatic preventive imprisonment linked to the offense type, without individualized assessment of procedural risk, is incompatible with articles 7.3 and 7.5 of the American Convention on Human Rights.

Doctrine

Natarén Nandayapa, Carlos F. and Ramírez Saavedra, Beatriz Eugenia. Oral Litigation and Criminal Forensic Practice. Oxford University Press México, 2nd ed., 2011. ISBN 978-607-426-175-2.
García Ramírez, Sergio. The Accusatory Criminal Process in Mexico. National Institute of Criminal Sciences (INACIPE), 3rd ed., 2012. [Note: INACIPE has published multiple editions of this work; the content of the chapters on governing principles of the accusatory system varies between editions. It is recommended to verify the edition available in the consulted library.]
Benavente Chorres, Hesbert. The Application of Case Theory in the Accusatory and Oral Criminal Process. Flores Editor and Distributor, 1st ed., 2011. ISBN 978-607-610-027-5.

Official Sources

Official Gazette of the Federation (DOF): www.dof.gob.mx
Federal Judiciary Council: the agreements of the Plenary of the CJF relating to the implementation of the New Criminal Justice System are available at www.cjf.gob.mx. [Note: the original article cited a general agreement without a number or publication date in the DOF; given that there are multiple CJF agreements on this matter, the specific citation could not be confirmed. The reader is directed to the official CJF portal to locate the agreement applicable to the jurisdiction and relevant implementation stage.]
Executive Secretariat of the National Public Security System (SESNSP). Criminal Incidence of Federal Jurisdiction: criminal cases in the adversarial accusatory system. Available at: www.secretariadoejecutivo.gob.mx/incidencia-delictiva/incidencia-delictiva-fuero-federal.php. Recommended consultation date: verify the most recent monthly report of the current year for data updated to 2025.