Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 202º CPP – Who can be a witness.

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Art. 202. Any person may be a witness.

testimony and truth

Interferences in Truth and Witness: The truth is the coincidence between the fact and its version. What the witness knows, knows, is a reflection, a conception, an understanding of the truth. We only know verses, never the truth. We only experience a projection of the outside world through the senses. We are not watching the scene, but its projection on the screen of consciousness. We live parallel to the truth. In her reflection on the uneven surface of the mirror, in our psychic apparatus. The witness’s understanding of what was witnessed is not identical to what is charged. The truth goes through several interferences, until it reaches its assessment. Hence, the value of testimony is relative, as is, in fact, the value of any evidence. The fact starts from the outside world and passes through the witness’s senses (vision, hearing…), where it is interfered with. It reaches the witness’s consciousness, where he suffers interference from his unconscious experience, his history, his personality, his character, his values, blocks and prejudices. After these two interferences, the witness forms the conception of truth, that which the witness knows to be the fact. When narrating orally what he knows, his words may not mean what the witness really conceives (3rd interference), and whoever listens, the judge, may misunderstand what was said (4th interference – from the meaning represented by the hearing of the one who listening). Next, what the judge heard is interfered with by his own unconscious experience (5th intermediation and interference), and only then is the judge’s conception or knowledge of the narrated fact formed. Finally, the judge dictates to the clerk his conception of the fact, and what he dictates (his words) may not mean exactly what he thinks (6th interference). On top of all that, that wasn’t enough, the scribe can type wrongly and, it should be noted, sometimes the position of a comma changes the entire meaning of the sentence (7th interference). See this example:Do not wait. Do not wait. And this other : Have no mercy! No, have mercy!Even when the witness testifies, for those listening, the pauses play the role of commas. If the speaker misses the right moment for some pauses, the listener will capture a different meaning than the one the witness wanted to convey. Even the words completely change their meaning according to the intonation of the voice and the expressions on the face. The problem with testimonial evidence is not just the sensory capture of the event. Depending on the personal conditions of the witness, the biggest problems and the most serious distortions will occur in the assimilation, understanding and transmission of what was captured. Hence, as has been said, the value of testimonial evidence is relative. And this relationship has a close link with the subjective conditions of the witness.

Names given to witnesses:  Forensic practice, over time, has given names to witnesses. A direct  or face-to-face  witness  is the one who witnessed the fact narrated in the complaint. Indirect  is the one who heard about the fact, usually through someone who witnessed it. Referred witness   is that person whose name is mentioned during the questioning of a witness called by one of the parties and, then, is called to testify. Numerary are the constant witnesses of the complaint and prior defense and that count for purposes of obedience to the maximum limits. Extranumerary, those that do not count. Informants are not witnesses. They are the smallest, for example. They make no commitment.

Doctrine

Aury Lopes Jr and Cristina Carla Di Gesu:  False memories and testimonial evidence in criminal proceedings: in search of harm reduction .   bdr.sintese.com .

Fernando Augusto Fernandes:  Special testimonial: effectiveness and compatibility as a means of producing evidence. ffernandes.adv.br.

Filipa Luísa Ribeiro da Cruz Pereira:  The role of the victim in Portuguese criminal procedure. repositorio.ucp.pt/bitstream.

Bruna Lima:  The witness hearing preceded by the reading of the statement given at the Police Station .  Criminal Science Channel.

Daniel Diamantaras de Figueiredo :  The right of the accused to confront the prosecution witnesses in the production of criminal evidence .  Law School. University of Lisbon

Gabriel Andrade de Santana and João Daniel Jacobina Brandão de Carvalho:  Judges cannot question the relevance of defense witnesses . Conjure

Gustavo Noronha de Ávila and Gabriel José Chittó Gauer and Luiz Alberto Brasil Simões Pires Filho:  “False” memories and criminal proceedings: (re)discussing the role of the witness .  repositorio.pucrs.br

Joao Paulo Oliveira Dias de Carvalho.  From the personal subpoena of the defendant to rectify the indication of the testimonial evidence . Anadep.

Maria Regina Fay de Azambuja:  The questioning of the victim of intrafamilial sexual violence in the light of the best interest of the child . crianca.mppr.mp.br.

Jurisprudence

The testimony given by police officers involved in investigative action or those responsible for arrest in flagrante delicto is valid and covered with probative efficacy, when it is in harmony with the other evidence in the file and is collected under the scrutiny of the contradictory and ample defense. Source: Jurisprudence in theses (STJ).

Judgments:

HC 418529/SP, Rel. Minister Nefi Cordeiro, judged on 04/17/2018, DJE 04/27/2018

HC 434544/RJ, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 03/15/2018, DJE 04/03/2018

HC 436168/RJ, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 03/22/2018, DJE 04/02/2018

AgRg no AREsp 1205027/RN, Rel. Minister Felix Fischer, Fifth Panel, judged on 03/13/2018, DJE 03/21/2018

AgRg in AREsp 1204990/MG, Rel. Minister Sebastião Reis Júnior, judged on 03/01/2018, DJE 03/12/2018

EDcl in AgRg in AREsp 1148457/ES, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 02/06/2018, DJE 02/23/2018

It is possible for the prosecution assistant to register witnesses (Article 271 of the Code of Criminal Procedure), provided that the limit of 5 (five) people provided for in Article 422 of the CPP is respected. Source: Jurisprudence in theses (STJ).

Judgments:

AgRg in RHC 089886/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 11/21/2017, DJE 11/27/2017

AgRg in AREsp 988640/RS, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 08/03/2017, DJE 08/16/2017

REsp 1503640/PB, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 08/04/2015, DJE 08/13/2015

HC 102082/GO, Rel. Minister Napoleão Nunes Maia Filho, Fifth Panel, judged on 05/27/2008, DJE 11/17/2008

HC 074467/MG, Rel. Minister Felix Fischer, Fifth Panel, judged on 04/19/2007, DJ 06/04/2007

The defendant does not have the subjective right to follow, by videoconference system, a witness hearing held, in person, before the Natural Court of the case, due to the absence of legal, regulatory and principled provision. Source: Jurisprudence in theses (STJ).

Judgments:

HC 422490/MS, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 03/13/2018, DJE 03/20/2018

RHC 077580/RN, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 02/02/2017, DJE 02/10/2017

Mentally handicapped, minors and relatives

Mentally handicapped, minors and relatives:  They can be heard as witnesses. This is what can be inferred from  article 208 :  The commitment referred to in  article 203 shall not  be granted to the mentally ill and disabled and to children under 14 (fourteen) years of age, nor to the persons referred to in article 206. Article 206  provides  :  The witness cannot exempt himself from the obligation to testify. However, the ascendant or descendant, the affine in a straight line, the spouse, even if divorced, the brother and the father, mother, or adopted child of the accused may refuse to do so, except when it is not possible , on the other hand, to obtain or integrate proof of the fact and its circumstances.

Minor participant in the crime:  May testify as a witness.

Probative value of the testimony of minors and relatives : These testimonies must be evaluated very carefully. The child is impressionable and the relatives are, in principle, suspect of partiality, since they are emotionally attached to the accused.

Doctrine

Guilherme Nucci:  Listening, special testimony and the new crime of violation of procedural secrecy . Guilhermenucci.

Fernando Augusto Fernandes:  Special testimonial: effectiveness and compatibility as a means of producing evidence. ffernandes.adv.br.

Rita Estrela Lemos Carneiro :  Obtaining a minor’s testimony: the challenge of credibility and the issue of protection . repository.ul.pt. 2016.

Jurisprudence

Validity of the testimony without damage in sexual crimes against children and adolescents:  The fact that the defender and the accused of a sexual crime committed against a child or adolescent are not present at the victim’s hearing due to the use of the inquiry method does not constitute nullity due to defense restriction called “deposition without damage”, excluding any possibility of claiming a defect in view of the lack of an allegation of damage in a timely manner and in view of the acquiescence of the defense to carry out the procedural act only with the presence of the judge, the social worker and the server of the Judgment (STJ, RHC 45.589-MT, Reporting Judge Gurgel de Faria, judged on 2/24/2015, DJe 3/3/2015 – Newsletter 556).

Evidential value of testimony

Probative value of the testimonial evidence:  The probative value of the testimony is measured taking into account its coherence, conformity with the rest of the evidence and, mainly, the interests of the witness in the context of interpersonal relationships with the others involved with the fact under investigation.

Prohibited from testifying

Prohibited from testifying:  Persons who, by reason of their role, ministry, trade or profession, must keep their secrecy, are prohibited from deposing, unless, released by the interested party, they wish to give their testimony ( Article 207 ) . The judge is also prohibited from testifying in the process in which he is acting ( article 252, II ), a prohibition that also applies to the MP ( article 258 ). By analogy, the prosecutor cannot serve as a witness in the case in which he acted during the police investigation.

Guarantee of Deputies and Senators

Guarantee of deputies and senators:  Deputies and senators are inviolable, civilly and criminally, for their opinions, words and votes. They are not obliged to testify about information received or provided due to the exercise of their mandate, nor about the people who entrusted them with or received information from them ( article 53, paragraph 6, of the CF ).

witness protection

Witness Protection Program:  Law  n. 9,807/1999 establishes norms for the protection of victims, witnesses and whistleblowers under threat. Provides for the following measures: I – home security, including telecommunications control; II – escort and security when moving from residence, including for work purposes or for giving testimonies; III – transfer of residence or temporary accommodation in a place compatible with protection; IV – preservation of identity, image and personal data; V – monthly financial aid to cover the expenses necessary for individual or family subsistence, in the event that the protected person is unable to carry out regular work or lacks any source of income; VI – temporary suspension of functional activities, without prejudice to the respective salaries or benefits, when a public or military servant; VII – social, medical and psychological support and assistance; VIII – secrecy in relation to the acts performed by virtue of the protection granted; IX – support from the program executing agency for the fulfillment of civil and administrative obligations that require personal attendance. Generous measurements. In real life, they will not be implemented.

Fim

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