Incorporación del testigo hostil a la legislación ecuatoriana.

Abstract

The following paper addresses the figure of the hostile witness in the context of the Ecuadorian legal system, specifically within COGEP, which came into force in 2016. This code marked an important change by prioritizing orality in judicial proceedings, in contrast to the old written system, which was considered slow and bureaucratic. Within these reforms, the figure of the hostile witness was incorporated, defined as one who is contrary or adverse to the party that calls him/her to testify, allowing the use of suggestive questions during the interrogation. However, a legal vacuum is identified in the regulation of this figure, since the COGEP does not establish clear criteria to determine when a witness must be declared hostile, nor does it define the degree of hostility required. This lack of clarity generates uncertainty and hinders its practical application, affecting the principle of legal certainty. In addition, it is noted that the figure of the hostile witness has its roots in the Common Law system, where it is applied mainly in criminal proceedings, while in Ecuador it has been incorporated in civil proceedings, which represents a divergence from its original nature. It also notes the absence of jurisprudence on the subject and the reluctance of judges to apply this figure due to the lack of clear guidelines. Finally, a legal reform is proposed to specify the requirements and procedures related to the hostile witness, as well as the elaboration of a new law on the use of hostile witnesses.