When initiating a prosecution, the accused facing the state machinery in a highly unequal and unprotected position. To avoid this and ensure the "equality of arms" in criminal proceedings, from Article 18 of the CN and Articles 8.1 and 8.2 of the American Convention establishes the right of defense at trial.
is not the idea of \u200b\u200bthe post to make a brief description of it, which was discussed during the course of a masterly manner. Therefore, our intention from the outset, is to try to focus on an exact point of legal defense is a defense of the accused.
Citing Cafferatta Nores, defense technique is integrated with the business conducted by an attorney, for doing so, develop the defense strategy and propose tests, monitor and participate in production and in charge offered by the prosecutor, argued about its effectiveness convictional, will discuss the legal framework of the facts which can be attributed to his client and the penalty it seeks to impose, and may use interest. "
Now, a defense theory, it is perfect ... but what about in practice? Is it really as it should be? Would you say that the work of defenders officers, who are often clogged and causes are not enough to be able to control them all, actually meet with a defense when the accused does not have the purchasing power to afford a private attorney? Would you say that even private lawyers do their job effectively?
In the ruling, "Núñez" of the SCJ, matching arguments can not be ignored that idea. Among them, for example, is said to "take great precautions to ensure the full exercise of the right of defense. (...) Must be true, so that those who suffer a criminal proceeding must be provided with adequate advice legal, to end supplement their negligence in the provision of defense, ensuring, thus, the substantial reality of the defense at trial "
" While it is the duty of the technical assistance of the accused to establish that the defendant claims not appear, in his view minimally visible, this does not relieve them from making a serious study of the issues will eventually be eligible to pass through the relevant process, especially because it is an obligation that the company put in charge, can not be attributed the failure of defendants-which has been outside the institution-provided to ensure the exercise of their constitutional rights, the ownership holds only, and whose failure can lead to international responsibility of the Argentine state "
" The right of counsel must be true, so that whoever is to be provided with adequate legal advice to the extreme to ensure the reality substantial legal defense "
" is not enough representation by counsel, but, the latter should assist the accused in a REAL, TRUE AND PROPER "
"The inefficiency is not the content of the defense but the lack of possibility that the lawyer gave his client to participate in their strategy. "
therefore not always have formal representation by counsel involves a real defense of the person and rights, as stated by the constitutional mandate. The real defense at trial is guaranteed by an effective defense, without prejudice to the defense strategy of each (which is subject to a hopeless case mix).
On the other hand, omissions such as failing to offer evidence, not cross-examine witnesses, make a closing argument less than 1 minute in length and not weigh the evidence producidas en el debate son indicativas de una evidente falencia en la defensa técnica. Sin embargo, ello es así solamente si estos ejemplos se dan conjuntamente. No podríamos concluir que el hecho aislado de no interrogar determinados testigos sea signo de indefensión, ya que, por ejemplo, ante un sólido testimonio no parece razonable indagar porque podría resultar aún más perjudicial de lo que ya es. Además, al ser desconocida por todos la estrategia del defensor (o la falta de ella) solamente podemos hablar de defensa ineficaz ex post . Por lo tanto la solución de la nulidad se impondría.
Here are some examples of ineffective legal defense
And for good measure, never forget:
Agitators: Christian Calleja - Miguel A.
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