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- FORA DA ESCURIDÃO: DEVIDO PROCESSO E DIREITO DE AUDIÊNCIA, AMPLA DEFESA E CONSULTA NO MÉXICO, BRASIL E ESTADOS UNIDOS

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.

divesting anybody of a valorized fivesome, expanding the shield beyond the archetypical threesome to an additional duo of classifications: "possessions" and "rights." 9 To boot, it spells out what the safeguard commands: "a trial in a regular tribunal, respectful of the essential procedural formalities, and under laws passed a priori." 10 The Brazilian 1988 governance instrument itself textually preserves the Anglo-American amendatory clause's memorable culminating words. Further, it insures not scarcely proprietary but spaciously all "goods." 11 Finally, the document does not expressly address undue takings of someone's flesh-and-blood existence probably because it generally bans the "death penalty." 12 On top of variations such as those inventoried, the basic theme has persisted identical throughout. The divestiture of somebody's precious belongings or freedoms calls for an appropriate antecedent procedure. It becomes constitutionally legitimate only upon discharging this requirement.
Inevitably, the processing owed may vary from one national system to the next. In many of them, though, it involves a chance for those concerned to appear personally and make their case.
That is, the authorities must (1) hear them and (2) permit them to defend themselves broadly and perhaps even to cross-examine adverse witnesses. 13 Unequivocally, the Mexican Supreme Court has linked this duet's commitments. It has announced that the guaranty of such an oral exchange "requires compliance with" compulsory adjective rituals for "an opportune and adequate defense prior to an act of deprivation." 14 In the 9 CONST. art. 14 (Mex.) ("Nadie podrá ser privado de la vida, de la libertad o de sus propiedades, posesiones o derechos, sino mediante juicio seguido ante los tribunales previamente establecidos, en el que se cumplan las formalidades esenciales del procedimiento y conforme a las leyes expedidas con anterioridad al hecho."). 10 Id. 11 Const. art. 5(LIV) (Braz.) (Assim, "ninguém será privado da liberdade ou de seus bens sem o devido processo legal . . . ."). 12 See id. art. 5(XLVII) (Portanto, "não haverá penas de morte, salvo em caso de guerra declarada . . . ."). 13 See infra. 14  same connection, the justices have equally zeroed in on the need "to furnish" the interested individual "the opportunity" to shield herself "amply." 15 The succeeding sections will study in turn the entitlements to a face-off in Mexico and to formal self-protection or an interrogative confrontation in Brazil. They will do so not in the abstract but rather by evaluating how these prerogatives play out concretely and pinpointing a prominent and possibly pivotal lawsuit. The discussion will employ common-law-style monikers to denote the focal opinion in each instance: (1) Melgar Castillejos v. President of the Republic and (2) Villarinho v. Brazilian Union of Composers. 16 In the Mexican controversy, the federal judges at all levels aggressively developed the core concept, which titles this piece, 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 offlimits 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.
De la resolución en que se dicten las providencias mencionadas en este artículo procede el recurso de apelación en el efecto devolutivo. IV. Dictadas las providencias que establecen las fracciones anteriores se procederá a un segundo reconocimiento médico del presunto incapacitado, con peritos diferentes, en los mismos términos que los señalados por la fracción II. En caso de discrepancia con los peritos que rindieron el primer dictamen se practicará una Junta de avenencia a la mayor brevedad posible y si no la hubiere el Juez designará peritos terceros en discordia. This regulatory framework facilitates speculation on the specifics of the story: The ostensibly distraught daughter litigated at the onset for the internment of her beloved begetter.
Initially, the adjudicative body consulted with medical advisors, who backed her demands, and approved a tutorship for the management of his belongings. Then, it scheduled supplemental psychological appraisals, which corroborated its findings on his instability, and had him interned inasmuch as nobody raised an objection.
Patently, all the controls available might not suffice to compensate for the lack of a viva voce exchange. Self-evidently, the primarily concerned but excluded could, if integrated, supply crucial information beyond that derived from the allegations of prosecuting attorneys, the testimony of the plaintiffs or counselors, or any other evidence. As described, the whole setup sounds illegitimate insofar as it does not invite those at peril (of losing their autonomy) to express themselves at or even witness the proceedings.
The parliamentary framers might have refused the clamored-for and rather minor extra step-of constraining the decision-maker to listen-out of concern that doing so might cause excessive delay. They might have worried about further complicating or slowing down an intrinsically intricate adjective setting. The legislated scheme might also reflect a failure to appreciate fully the probatory or fairness benefit of incorporating those branded as psychically V. Hecho lo anterior el Juez citará a una audiencia, en la cual, si estuvieren conformes el tutor y el Ministerio Público con el solicitante de la interdicción, dictará resolución declarando o no ésta. Si en dicha audiencia hubiere oposición de parte, se sustanciará en juicio ordinario con la intervención del Ministerio Público.). 23 Id. at 7, Semanario Judicial at 118 (quoting Cd. Pro. Civ. art. 905(II) (Fed. Dist.) (Mex.)) ("El presunto incapacitado será oído en juicio, si él lo pidiera, independientemente de la representación atribuida al tutor interino."). 24 Id. at 3, Semanario Judicial at 128 (Sánchez Cordero, Ortiz Mayagoitia, Aguirre Anguiano, JJ., dissenting) (quoting Cd. Pro. Civ. art. 905(V) (Fed. Dist.) (Mex.)) ("Luego [de] que cause ejecutoria la sentencia de interdicción se procederá a nombrar y discernir el cargo de tutor definitivo que corresponda conforme a la ley . . . ."). In contrast, the top tribunal deemed the transitory limitations on proprietorial protections sufficiently burdensome to warrant entitling the mainly interested person to appear. 25 Curiously, it did not home in on the oppressive effects of having her confined. Thus, its concurrent constituents articulated on its behalf an approach resembling that of their discordant colleagues. 26 Perhaps they wanted to underscore that the proprietary restraints inflicted enough of an onus and avert a dispute on whether the legislation actually authorized such a confinement.
Successively, the dissenting ensemble evaded this final issue entirely. Of course, it conceded that the legislative intent consisted in "temporarily restricting the free movement" of the purportedly "disabled individual" or "keeping [her] in place." 27 Still, the dissenters never directly acknowledged that she could end up locked up. Nor did they exhaustively examine the implications of this possibility. Toward the close of its own deliberations, the majority expressly recognized that "the challenged statute" "permit[ted]" an "absolute" containment of "legal capability." 28 Regardless, it did not dwell on this recognition, which might subliminally comprise that of the prospect of commitment.
The enactment itself unquestionably dictates "the securement" of the subject. 29 In addition, it contemplates having her committed after this primary phase in the absence of opposition. 30 Ergo, the bench does seem to possess the prerogative to have her provisionally restrained without allowing her to speak up.
During its inquiry, the highest adjudicatory institution distinguished governmental (1) "acts of inconvenience" from (2) those "of deprivation." 31 It clarified that the guaranty of a give-andtake attaches to the latter yet not to the former type, which respectively fall under constitutional Articles 14 (priorly excerpted) and 16. This last provision establishes that: "No one may be inconvenienced-nor may his family, residence, papers, or possessions-without a written authorization from the responsible officers explaining and justifying" themselves. 32 The question of which standard or corresponding category should come into play divided the competing camps. It helped to structure yet obviously did not solve their disagreement.
The outvoted deliberators protested that the potential short-term consignment would at most saddle an inconvenient load upon the consigned. They stressed that such a direction would set off a full and fair trial, constitute barely an antecedent to the eventual resolution, and operate exclusively during the pendency of the lawsuit. 33  Público con el solicitante de la interdicción . . . dará lugar a la declaración de interdicción y a la firmeza de la misma. En cambio, si el Juez dictara provisionalmente la interdicción, el juicio habrá de proseguirse de modo necesario, porque la demanda ya está presentada y también definido el tutor interino que deba representar en juicio al presunto incapaz."). ruling until a conclusive adjudication. Nevertheless, the institutional opinion pertinently notes "the want of a deadline" to try the cause "after the pretrial" pronouncement of incapability. 39 In an undertone, it sensibly concludes that "this nonfinal disposition" may stay put "indefinitely." 40 Along somewhat similar lines, the United States Supreme Court has professed that the "fundamental requisite of due process" boils down to the occasion "to be heard." 41 It has stated that the concession of such a chance "before" condemning somebody "to suffer grievous loss of The disputed regimen denies those inculpated before it a hearing together with any opportunity to offer documental or testimonial support for themselves.
Ultimately, Northfleet based her analysis on associational autonomy and freedom. 57 She reasoned that: "Disputes concerning the dismissal of a member of a [privately chartered] entity should be settled in accordance with [internal regulations] and the legislation in force. They do not have the constitutional dimension attributed to them [in the disposition below]." 58 In reply, Barbosa criticized her for indiscriminately importing the dated theory of "state action" from the United States to repudiate the relevance of constitutionalized adjective entitlements to the lawsuit under review. 59 Appositely, the Constitution's operative provisions do not expressly 55 Id. at 580 (Northfleet, J., dissenting) ("Por motivos irrelevantes para a solução do presente extraordinário, a recorrente excluiu o recorrido de seu quadro de sócios . . . ."). 56 Id. (quoting "the appellate court") ("Embora a sociedade tivesse . . . designado uma comissão especial para apurar as possíveis infrações estatutárias atribuídas ao autor, tal comissão . . . deixou de cumprir princípio constitucional, não ensejando ao apelado oportunidade de defender-se das acusações e de realizar possíveis provas em seu favor. [A] comissão simplesmente reuniu-se e, examinando a documentação fornecida pelo secretário da sociedade, concluiu pela punição do autor."). 57 See id. 58 Id. at 581 ("A controvérsia envolvendo a exclusão de um sócio de entidade privada resolve-se a partir das regras do estatuto social e da legislação civil em vigor. Não tem, portanto, o aporte constitucional atribuído pela instância de origem . . . ."). 59 See id. at 621-622 (Barbosa, J., concurring) ("[A] eminente relatora, em seu voto, adotou sem nuances a doutrina da state action do direito norte-americano, segundo a qual as limitações impostas pelo bill of rights se aplicam prioritariamente ao Estado e a quem lhe faz as vezes, jamais aos particulares."). The reconstituted majority highlighted that the complainant had to rely on the body before it to make a living, capitalizing on his "liberty" to engage in his "profession." 69 Thereby, it implied that the applicability of the commitments at issue hinged on the professional indispensability of his affiliation. Unfortunately, no precise exploration ensued of how the appellant assisted in the enforcement of his copyrights.
Mendes, conjointly with the cohort behind him, might have displayed less punctiliousness in protecting people who belonged to social groups. He might have altogether exempted these from liability insofar as they did not sustain the critical right to practice an occupation, or any other one. Nonetheless, they would seem to scream for some regimentation as vehicles for the On an initial impression, both jurists would appear to have viewed the commitments at stake as enforceable exclusively against the government or its surrogates. Accordingly, they would have been buying into some version of the Anglo-American approach. Upon deeper inspection, though, the excerpted statements cry for contextualization. When read in their contexts, they seemingly suggest that an outfit of this genre must respect the discussed strictures when it facilitates its affiliates' exercise of cardinal rights or when it functions virtually publicly.
Implicitly, the tribunal opened the door to deploying the primordial principle (1) substantively as well as (2) procedurally  In all, the diverse ensemble that won out in the courtroom debate perhaps disagreed on how far to march into the private sector. Nevertheless, it seemed to converge on the imperativeness of advancing past the strictly or constructively governmental sphere. Effectively, the judicial intermediary of ultimate resort wound up renouncing any requirement of official participation and espousing one of impact on a weighty commitment. In actuality, it edged toward jurisprudential perspectives that ostensibly no one on its counterpart in the United States has envisioned and that could very well inspire some fruitful comparative contemplation.

RUNDOWN
Ultimately, due process may lead the way not to a redeeming light but away from obscurity.
It may empower someone to avoid losing her previously attained substantive entitlements rather than to gain any additional ones. The procedural rights to a hearing or to an ample defense, as part of the wider guaranty behind them, render such empowerment vividly possible. They figured prominently in the preceding discussion.
As expounded in the Runup, the notion at stake, in conjunction with its interdiction of arbitrary divestitures, spread to Latin America from the United States. It has undergone modifications en route while conserving its central tenor. The underlying constitutionalized commitment compels powerful parties to traverse through an appropriate procedure before divesting vulnerable ones of capital freedoms or goods.
Without doubt, the processing owed varies contextually. In many jurisdictions, however, it must vouchsafe the person concerned a chance to show up and speak up. As demonstrated, those 79 Sup. Trib. Fed., Segunda Turma, Villarinho, RE 201819/RJ at 622 (Barbosa, J., concurring) ("No campo das relações privadas, a incidência das normas de direitos fundamentais há de ser aferida caso a caso, com parcimônia . . . ."). in charge must hear or listen to her and allow her to defend herself amply and maybe even to cross-examine unfavorable witnesses.
The foregoing sections correspondingly investigated the right to a face-off of the sort in Mexico and to such formal self-protection and interrogation in Brazil. They did so not abstractly but instead by ascertaining how these entitlements ended up illuminating a couple of concrete, controversial, and crucial lawsuits, one from each of these nations: (1) Melgar Castillejos v.

President of the Republic and (2) Villarinho v. Brazilian Union of Composers.
In the Mexican dispute, the justices deployed the core concept in a manner that calls to mind and enhances key developments north of the Rio Grande. Significantly, they applied it, beyond its original criminal sphere of application, in a realm that has become relevant relatively recently: namely, that of civil and pretrial law. The complainant eventually scored the guaranty to have himself hearkened to prior to his precautionary confinement for psychic inability.
In the controversy from Brazil, the Supreme Court pushed the norm to a terrain thus far uncharted or proscribed within the United States regimen: that of privately based deportments.
It reckoned that when discernibly threatened there, personal liberties required sufficient safeguards for their survival. The pleading musician achieved protection to shield himself extensively against a nongovernmental professional outfit that had enabled him to merchandise his lyrics and that resolved to sack him.
As a whole, these cases signify that across the Americas, the tide of influences on these issues should perchance turn. Every now and then, it might as well head northward. Fatefully, such change would demand new attitudes along with further investigative undertakings.