Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 158-A – Chain of custody. General concepts.

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 Art. 158-A. Chain of custody is considered the set of all procedures used to maintain and document the chronological history of the trace collected in places or from victims of crimes, to track its possession and handling from its recognition to its disposal.  (Included by Law No. 13,964, of 2019) (Effective)   

§ 1 The chain of custody begins with the preservation of the crime scene or with police or expert procedures in which the existence of a trace is detected. (Included by Law No. 13,964, of 2019) (Effective)  

§ 2 The public agent who recognizes an element as of potential interest for the production of expert evidence is responsible for its preservation. (Included by Law No. 13,964, of 2019) (Effective)  

§ 3 Trace is any object or raw material, visible or latent, verified or collected, which is related to the criminal offense. (Included by Law No. 13,964, of 2019) (Effective) 

Chain of custody of the evidence, its breach and consequence

The chain of custody of the evidence: Chain of custody of the evidence is the logic of the succession of obtaining the evidence and indications of the crime and its authorship. It is the chain of tests, from the first to the last. If, examining the evidence of an investigation, it is not possible to recognize what gave rise to what, that is, it is not possible to understand the logical sequence of evidence collection that led to the solution of the crime, there is a breach of the chain of custody. The investigation, with this logical rupture, loses its reliability. Belief in the gods is acceptable, but not that they interfere with investigations. It is all carried out by the investigator who, step by step, clarifies the crime. If these steps leave no footprints, there is a lack of logical connection, and where logic is lacking, the suitability of the evidence is absent.

Breaking the chain of custody of the evidence:Setting an example. Luiz testified to the police that he saw Carlos (victim) dead and bloodied on the road. Luiz (witness) ran to the house of Maria (wife of the victim), wife of Carlos. At Maria’s house, Luiz saw Fernando (Maria’s lover). He also saw small bloodstains on the table. Luiz (witness) said that Carlos (victim) was jealous of Fernando (Maria’s lover) in relation to his wife Maria. The police carried out a search and seizure at the residence of Fernando (Maria’s lover). He finds bloodstains. Subjected to expertise, the blood is Carlos (victim). The police conclude that Fernando (Maria’s lover) killed Carlos. In this example, the chain of custody is present. In view of Luiz’s testimony, the police suspected Fernando, and went to his residence, where they found the victim’s blood. If Luiz’s testimony is removed from this narrative, there is a break in the chain of custody. It remains unclear why the police went to Fernando’s residence. The probative value of the thesis that it was Fernando who killed Carlos is reduced. If a residence is invaded by police and the proceeds of crime are found there, it is necessary to clarify what led the police to enter the residence. Without this clarification, the chain of proof is broken. Without an explanation for the invasion, it is difficult to believe in the legality of this action. Either illegal evidence was used or, who knows, the action was the result of a disagreement between a police officer and the owner of the house, or any other explanation. Chaining is missing. There is no logic in the succession of facts. There is a break in the chain of proof. And, in this case, given the absolute lack of motivation for the home invasion, present is also the illicit proof. The proof is therefore null. And all other proofs derived from it are null and void. There is a break in the chain of proof when there is fragmentation or interruption of the logic of the succession of proofs. When it is not known how a certain set of knowledge revealed by the investigation was obtained. The signs and evidence that form part of the chain of custody are all those that are relevant to clarifying the crime. They are not limited, therefore, to traces. The traces are after the crime, the indications can be both before and after. When it is not known how a certain set of knowledge revealed by the investigation was obtained. The signs and evidence that form part of the chain of custody are all those that are relevant to clarifying the crime. They are not limited, therefore, to traces. The traces are after the crime, the indications can be both before and after. When it is not known how a certain set of knowledge revealed by the investigation was obtained. The signs and evidence that form part of the chain of custody are all those that are relevant to clarifying the crime. They are not limited, therefore, to traces. The traces are after the crime, the indications can be both before and after.

Chain of custody for traces: Vestigio, from the Latin vestigium, means sole of the foot, footprint. They are the marks or records of the act that remain for the future. Projecting themselves into the future, they serve to reconstitute the past. Documents, objects, instruments, body of the crime, photographs, filming, audio recordings, biological material, all of this can constitute traces of the crime. The judge is a historian. In order to reconstruct the past, it is necessary to know not only the material and tangible consequences of the crimes, but also all the evidence that led to their clarification, whether material or immaterial, before or after the fact. Article 158-A does not deal with the chain of proof. It regulates part of it, the chain of material traces. It considers chain of custody (the device does not use the expressionchain of proof, as chain of proof is more than chain of custody) the set of all procedures used to maintain and document the chronological history of traces collected at locations or from victims of crimes. In paragraph 3, it defines trace as any object or raw material, visible or latent, found or collected. Thus, the chain of custody dealt with in the present device is the type of the chain of proof. The device and the others that follow basically regulate the collection and storage of traces. The chain of proof concerns all evidence and evidence, including traces. Testimony, recognition, confession, invasive and interception measures, police infiltration, the content of the interception, documents, expertise, among other acts and facts, are part of the chain of proof.

Consequences of breaking the chain of proof:Given the breaking of the chain of proof, what is the consequence? It depends. The first consequence is the loss of probative value of the evidence collection. Loss of probative value does not mean that the evidence is worthless. It just means reducing the value of proof. This reduction ranges from zero to ten. It depends on the circumstances of the specific case. The second, more drastic, is when there is sufficient evidence (material or immaterial and by deduction or induction) authorizing the conviction that illicit means were used to obtain evidence. In this case, the consequence is to recognize the nullity of all evidence resulting from the missing evidence (illegal evidence). Once this is done, it remains to be seen whether what is left of the investigation still represents, or not, just cause for action. Once the just cause is down, the action, if proposed, must be extinguished.

On Illicit Evidence: See heading Distinguishing Illicit Evidence from Nullity in Comments on Article 157 .

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