EQUALITY OF ARMS
Equality of arms is a principle that ensures a balance between defense and prosecution in criminal trials, so that the accused has reasonable opportunity to present his case, there including per-proven in court under conditions which do not place a substantial disadvantage compared to his opponent, the Public Prosecutor. Obviously, this rule of conduct paralegal is a broader aspect of the concept of a fair trial before an independent and impartial. But how to measure if the arms are equal between a defendant who knows the truth but do not have the police and public prosecution that has public power, but must seek and demonstrate what is the truth? How indeed accept this principle when the Prosecution is almost a second judge in the trial?
configuration even in our courtrooms placed over the accused. And more surprising still is the right granted to him to directly question the defendant or witnesses without going through the head judge for this possibility is not given to defense counsel. However, the prosecution has the freedom to tilt in favor of the trial because the testimony of the accused and witnesses are the determining factors on which the judge will be based headquarters to train and base its conclusion on the case before it ... where the facts of the hearing. So it is like a blank check authorizing the Legal Department to perform all sorts of intimidation and psychological pressure on the accused, already in a weak position. It may even outside the rules of professional conduct and ethics require him to plead guilty, take it to accuse other people or to extract a confession with promises of excuses or extenuating circumstances, oftentimes, unfulfilled. When we know that some representatives of the Public Ministry are unconcerned about the morality of means used to achieve their goal. No! In practice, the principle of equality of arms does not exist and never existed in criminal law in Haiti.
How to understand your opponent has the authority to arrest you, send you to jail and then keep for a while and then you continue to court? Even when, previously, it is appealed before the Dean in accordance with Articles 26, 26-1 and 26-2 of the Constitution, to address the illegal and arbitrary arrest or detention, or it does not attend the hearing and reversed the court which can take place properly, or it comes to hearing and ignored the decision "On behalf of the Republic "by the court in favor of the accused. Already, he does not even understand that the prosecution is his opponent ... so, like him, a party to the suit, he takes it to a judge. Now, what are we talking about? Equal opportunity, perhaps? Unfortunately, neither the National Association of Magistrates and Bars of the Republic nor civil society and public opinion have never denounced the ugliness of our legal system or even to question them.
Theoretically, trial, and particularly the criminal trial is not a fight where each party has one goal: to win. The mission of the Public Ministry is not to win or obtain the conviction of the accused or defendant, but to arrive at the truth and to deduce the consequences, whether positive or negative victims or defendants. A trial exists to contribute to justice and peace among men, not the victory and defeat each other. In this sense ... the fighting talk, the perfidious behavior, anti social and evil are not suitable for men of their laws ... are public prosecutors or lawyers.
Heidi FORTUNE
Magistrate, Magistrate
Cap-Haitien, Haiti, July 18, 2010
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