The (im) possibility of innovation in defensive argumentatiton in the rejoinder of the jury court: na analysis of the balancing of constitucional principles in light of material (in) equality and (dis) parity of arms

Abstract

The article analyzes the antinomy between the constitutional principles of the adversarial process and full defense in the context of introducing new defensive arguments during the rejoinder phase in the Jury Court. Through a literature and jurisprudential review, it contrasts the position of the Superior Court of Justice (STJ), which prohibits such innovation under the argument of violating the adversarial process, with doctrinal perspectives advocating for the primacy of full defense, given the material inequality and disparity of arms between the State-prosecutor and the technical defense. By applying the balancing method proposed by German scholar Robert Alexy (qualitatively), the study concludes that prioritizing the principle of full defense over the adversarial process is essential to balance procedural asymmetries, ensuring an equitable trial. It suggests flexibilizing the adversarial process through mechanisms such as a brief procedural interjection, allowing the prosecution to address the new thesis succinctly without suppressing the defense’s right to the final word.