Subsequently Discovered Evidence in Colombian Criminal Proceedings
By: Jonathan Guerra Bohórquez, Specialist in Criminal Sciences and Criminology
Colombian criminal procedure underwent a landmark transformation with the enactment of Legislative Act 03 of 2002, which marked the transition from an inquisitorial — or mixed inquisitorial — system to an accusatorial procedural model. As a result, the Fiscalía General de la Nación (Colombia's Attorney General's Office) ceased to exercise jurisdictional functions and took on its role as a party to criminal proceedings. This structural shift, consolidated by the enactment of Law 906 of 2004, reshaped numerous aspects of Colombian criminal procedure.
From the Principle of Permanence to the Principle of Immediacy.
One of the most significant changes concerned the way in which evidence is produced. Under the former system, the principle of permanence of evidence governed, allowing evidence gathered as early as the preliminary investigation stage to serve as the basis for a conviction. The reform replaced this principle with the principles of concentration and immediacy, establishing a new framework under which evidence carries probative value only if it is introduced and produced at trial. [1]
What Evidence Is Admitted at Trial?
As a general rule, only evidence that has been disclosed, requested, and ordered during the pretrial hearing (audiencia preparatoria) may be introduced at trial. However, this rule admits exceptions, the most notable of which is subsequently discovered evidence (prueba sobreviniente).[2]
What Is Subsequently Discovered Evidence?
Subsequently discovered evidence refers to relevant physical or material evidence that comes to light during trial and that, for reasons beyond the control of the party requesting it, could not have been disclosed or requested beforehand.
Requirements for Subsequently Discovered Evidence
For evidence to qualify as subsequently discovered, it must satisfy the following requirements[3]:
- Request by the parties: Either the Fiscalía or the defense — acting in concert with the accused — may request it.
- Newly discovered nature: It must constitute a discovery made after the pretrial hearing. It cannot be based on information previously known to the requesting party, and the late discovery must be attributable to circumstances beyond that party's control.
- Procedural timeliness: It must be requested during trial and before closing arguments begin.
- Significant probative value: It must have a meaningful impact on the case.
- Compatibility with the right to a defense and the integrity of the trial: Its admission must be carefully weighed to ensure that neither the right to a defense nor the overall integrity of the trial is materially compromised.
These requirements, together with the burden of demonstrating relevance, admissibility, usefulness, and necessity, are essential elements that must be addressed when requesting and ruling on the admission of such evidence.
Subsequently Discovered Evidence and the Right of Appeal
A matter that warrants careful analysis is whether the decision to admit subsequently discovered evidence may be challenged on appeal. As a general rule, evidentiary rulings are not appealable, except in specific circumstances. But should that same rule apply to subsequently discovered evidence?
In my personal view — which differs from a recent ruling by the Corte Suprema de Justicia (Colombia's Supreme Court of Justice)[4] — the admission of such evidence should be subject to appeal. Its exceptional nature and the additional requirements it demands justify a different treatment, since its admission can significantly affect the course and integrity of the trial.
This position is grounded in the fact that subsequently discovered evidence must not only be lawful and legitimately obtained and must not only meet the standard requirements of relevance, admissibility, usefulness, and necessity applicable to all evidence — it must also, as noted above, satisfy additional criteria: it must constitute a newly discovered finding, carry significant probative value, and trigger a balancing exercise regarding its impact on the trial and on the right to a defense.
Given these additional criteria — which must form part of the requesting party's argument and equally guide the judge's ruling — I take the view that the procedural treatment of subsequently discovered evidence cannot be placed on the same footing as that of ordinary evidence. This differential approach is necessary to safeguard substantive justice and procedural fairness.
In professional practice, this legal mechanism has proven to be a valuable tool, contributing meaningfully to the protection of the rights and guarantees of the parties in criminal proceedings. Subsequently discovered evidence is an instrument that has served us well in the field of criminal law.
[1] Proceso Penal Acusatorio. Nelson Saray Botero. Editorial Leyer, second edition, 2017.
[2] La audiencia preparatoria. Enrique del Río González. Editorial Ibañez, second edition, 2022.
[3] Corte Suprema de Justicia, AP3307-2023, November 1, 2023, M.P. Dr. Gerson Chaverra.
[4] Corte Suprema de Justicia, STP2553-2022, January 20, 2022, M.P. Dra. Myriam Ávila Roldán.
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