"This constitutional reform is a great opportunity to improve the administration of criminal justice in our country, through a more transparent and guaranteeing procedure."
The defense guarantee
With the reform that our constitution has undergone, focusing directly on criminal matters, it would be necessary to address the issue of Defense Guarantee, which from a personal point of view basically refers to procedural equality for both parties, this to support the accusation or in his case the defense as well stipulated in article 20, subsection A), fraction V of the constitution.
For a servant, the defense guarantee is basically established to be used by the Defendant, with this it is sought that he does not remain in a state of defenselessness against the charges that are imputed to him.
Within the defense guarantee we also find one more right of the accused, this is to declare or remain silent, without there being any harm against him with this reservation. Although it is true that there have been cases of intimidation, including torture and incommunicado detention in order to obtain the confession of the accused, that is why in section ll of subsection B) of article 20 of the Constitution, it clearly stipulates not only their right to remain silent. or, failing that, to declare, but also mention the fact that any act that violates their rights, such as those mentioned in advance, will be sanctioned by criminal law. It also clearly marks that the confession made without the assistance of the defender will have no probative value.
I support what is stipulated in the Magna Carta, hoping and trusting that the authorities in charge of enforcing the norms can achieve their complete and effective application, since in Mexico, in view of everyone, there are techniques that the executing authorities carry out in order to “obtain information ”or I dare to say the“ forced ”confession by the accused, and although it is a fact that to date these techniques are applied, most of the cases have gone unpunished, due to the lack of credibility in authorities on the part of those affected and offended. It is preferred to remain silent knowing that their rights have been violated, all this due to the immunity that is given to the authorities in our country.Hopefully, with the new system that is being implemented in Mexico, these unconstitutional practices will become obsolete and will stop violating the rights of the accused, and why not the victims themselves, and if any authority carries out any of them, What is stipulated in the constitution applies to them and with it their conduct outside the law really has criminal consequences that they will deserve.
The accused also has the right to be informed from the moment in which he is arrested of the charges that are being imputed and the rights that assist him this also at the time of appearing before the Public Ministry.
All of the above in accordance with Article 20 of the Constitution, subsection B), section III. You even have the right to present evidence and witnesses, in addition to the fact that the law supports you so that the people from whom you request testimony appear. This according to section IV of subsection B) of the article in question.
We know that in our country the term "He is guilty until proven otherwise" has been literally used, a situation that can rarely be demonstrated due to the lack of resources on the part of the accused in most cases, unfortunately this has led that the prisons in Mexico are full of innocent people who have not been able to prove their innocence, entering with the presumption of guilt and staying inside without taking a fair process according to the law. Despite the fact that a social defender is appointed to him many times due to the large number and diversity of cases he is in charge of, he no longer does his job correctly, perhaps not because he does not want to, I would like to think, but because of the workload, It is very difficult for him to do his job efficiently as regards the defense of the cases assigned to him.
The overcrowding in the various prisons in our country is unheard of, a situation from my personal point of view is largely due to the poor application of the rules and why not comment on the inefficiency of the authorities who often do not do their job correctly, Without neglecting the responsibility that falls on the state, which with the small budget that designates the administration of justice, makes the work of the various authorities impossible, due to poorly paid wages, the few resources to do their work, etc.
Without a doubt, we are part of a system that in one way or another does not allow us to achieve efficiency in the administration of justice. That is why I consider that the defense guarantee is something that was truly necessary in our Constitution. And as long as it is applied correctly and as stipulated, it could work correctly, and be a success in the new system, as this would prevent many innocent people from going to prison, and that the real criminals have fair trials.
The success of the criminal constitutional reform, as I mentioned in the previous paragraph, does not depend on its incorporation into the Constitution, but rather on the care taken in training the actors and overcoming the cultural impact generated by the change in the system.; in counting on the sufficient financial resources that we have been lacking to date to plan the creation and operation of the precincts that will be necessary in terms of Oral Trial.
Furthermore, without a doubt, it is also necessary to in fl uence young lawyers, who are going to be the makers of law in this country tomorrow, since they are the generations that are emerging with these reforms already stipulated and with the change of the system from which they can learn from scratch without having to struggle with the old system. They can grow along with the new system basically.
Another right of the accused is that of an adequate defense by a lawyer, established in subsection B), Section VIII.
The accused has the freedom to choose his defense lawyer from the moment of his arrest, in case he does not want to appoint one or could not due to lack of resources, after being required to do so, the judge will appoint a public defender, This has to appear at all the acts of the process by right of the accused and also the defender will have the obligation to do so as many times as required.
Currently the position of the State to guarantee the provision of adequate and quality legal services is full of deficiencies.
It is worth mentioning that previously the law allowed the accused to be represented by “a person of his or her trust”, this was basically to leave the most economically and culturally vulnerable population defenseless. Well, he did not have enough resources to appoint a lawyer since he could not pay, thereby violating the defense guarantee.
Currently, those criminally prosecuted will have for their defense a lawyer who effectively knows the profession and can adequately defend them.
In my opinion, a good lawyer should not accept a defense if they do not have the sufficient and specialized knowledge in the matter to carry it out properly. However, the majority of lawyers in Mexico lack ethics, and the only thing they seek is to obtain financial compensation without thinking about the effect that they may cause their client for lacking the necessary knowledge for their defense. Unfortunately for many of the lawyers that we could say are serious and committed to their profession, the "lawyer" is known for the tricks and abuses they commit against their clients.
Likewise, Section VI, of subsection B), tells us that the defense guarantee includes that the defender and the accused have free access to the investigation folder for the preparation of the case, or their defense.
Leaving aside the corruption on the part of the authorities and lawyers to get information on the case.
So if the penal reform is applied properly in the new system, it is very likely that acts of corruption will decrease and more than anyone else, victims and defendants can be given an adequate defense guarantee.
We find the procedural nature of the defender in article 20 of the Constitution in its section B), Section VIII. That basically tells us that the accused will have the right to have his defender appear in all procedural acts and he will have the obligation to do so as many times as required.
As the last point to be discussed in this essay is the moment in which the right to the intervention of the defender is born, this would in my opinion be from the moment in which the accused is arrested. Based on the same fraction as the procedural nature of the defender.
