Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 212º CPP – Question procedure.

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Art. 212. Questions will be asked by the parties directly to the witness, the judge not admitting those that may induce the answer, are unrelated to the cause or imply the repetition of another one already answered. (Wording provided by Law No. 11,690, of 2008)
Sole paragraph. On the points not clarified, the judge will be able to complement the inquiry. (Included by Law No. 11,690 of 2008)

Questions by the parties and the judge

Old wording:  In the old wording of this device, the parties did not ask the question directly to the witness, they asked the judge, who, in turn, asked the witness. Another difference is that, in the previous system, the judge asked the questions first. 

Presidential system:  It is not because the questions started to be asked directly to the witness, without the intermediation of the judge, that the system ceased to be presidential. Still is. It is the judge who continues to preside over the hearing with powers of intervention, coordination and organization.

Judge interference:  Can the judge ask questions at any time, even while the party is formulating them? Should not. He must avoid interfering, disturbing the work of the part. In the same way that the parties do not interfere when it is their turn. Untimely interference can distract the party. It may also represent the witness’s escape route, which was being strategically routed to something close to the truth.

Returning the floor to the parties after the judge’s questions:  There is no such provision in Article 212. However, no new evidence, be it document, expertise or witness responses, can remain without contradiction by the parties. Therefore, if the judge is the last to ask questions, the answers to these questions necessarily need contradiction. New facts may have emerged, new claims, new evidence. The parties must be given the floor for re-questions. First to the prosecutor, then to the defense. It’s the natural order. The defense, as a general rule, always has the preference of being last.

Judge questions: The wording of the sole paragraph is that “on the points not clarified, the judge may complement the inquiry”. This wording can lead to the understanding that the questions should deal with topics that were not discussed with the witness. But that is not the meaning of the law. That would be inquisition. The principle of real truth is the vector principle of the process, not of the judge’s activity. The truth is obtained, through the process, with the contradictory, not with the inquisition. In view of the accusatory principle, the judge’s inquiries can only be aimed at complementing the answers to the questions asked by the parties. The judge cannot innovate. Search for new versions. You should stick to what was answered by the party, seeking better clarification. The judge can expand the field of knowledge, not inaugurate a new one.

Questions in the Plenary of the Jury:  In the Plenary of the Jury, the parties ask directly not only the witnesses, but also the victim ( article 473 ). The jurors can also ask questions to the witnesses and the offended party, but with the intermediation of the presiding judge (article 473, paragraph 2).

Doctrine

Renato Marcão:  Judge must act with caution so as not to restrict defense . Conjure

Renato Marcão:  The accusatory system and arts. 212 and 310, II, of the CPP . Legal Content.

Rogerio Schietti Cruz:  With the word, the parts . metajus

The order to ask and to answer

The Order of Asking Questions:  Witnesses called by the prosecution are questioned first by the prosecution and then by the defense. Those of the defense are questioned first by it, and then by the prosecution. It would make no sense for the defense witnesses to be questioned first by the prosecution, as, in most cases, the prosecution would have no idea what the witness had to narrate that would be of interest to the process.

Judge who starts by asking questions:  Taking into account the accusatory principle, and seeking to avoid the inquisitoriness of the process, a system in which the judge pursues the evidence, the legislator establishes that the last one to make the inquiries should be the judge, and even then only on “unclear points , that is to say, in a complementary, accessory way. Despite the legal determination, there are still decisions that have not recognized the nullity when there is an inversion of the order. The Brazilian CPP in its original wording is inquisitive. With the alterations it underwent, especially with the non-reception of several devices by the CF of 1988, it ceased to be. The code has changed. The problem is cultural. The law has changed. Law is repealed. It is not received. Culture, no. Changing is slower. But it is slowly changing. Some judges have already absorbed the new culture. Others don’t. When the judges let the prosecutors do their job, running after the truth, in short, doing what they are supposed to do, and realizing that this way they can have more peace and balance to be fair, they will leave their inquisitive traditions behind.

Who questions the judge’s witnesses first:  The witnesses that the judge decided to question ex officio, who questions first? The judge or the parties? It’s the promoter. There is no reason for the judge to question them first. There is nothing that the judge knows, that the witness has to tell, that the parties do not know, because what is not in the file does not exist. The judge knows nothing, or knows nothing about the process, extra-autos, it is a legal rule. So there is no reason for the judge to initiate cross-examination. As the general rule is that inquiries should begin with the prosecution, the prosecution is the first to ask. Next, the defense. Finally, the judge. And we confirm what was stated above in the title  Returning the word to the parties after the judge’s questions; if from the answers to the judge’s questions a new relevant fact emerges, the parties may ask new questions. 

Doctrine

Aury Lopes Jr:  Will they finally comply with art. 212 of the CPP? Now we have the word of the father-court . Conjure

Jayme Walmer de Freitas : The “cross examination” system in procedural reform . jus.com.br 

Jurisprudence

The questioning of witnesses by the Judge before the parties are given the opportunity to formulate the questions, with the inversion of the order foreseen in article 212 of the Code of Criminal Procedure, constitutes relative nullity. Source: jurisprudence in theses (STJ). Source: jurisprudence in theses (STJ).

Judgments:

HC 159885/SP, Rel. Minister Rogerio Schietti Cruz, judged on 06/21/2016, DJE 07/01/2016

HC 295979/RS, Rel. Minister Nefi Cordeiro, judged on 06/14/2016, DJE 06/22/2016

AgRg in AREsp 885644/RS, Rel. Minister Maria Thereza de Assis Moura, judged on 06/02/2016, DJE 06/14/2016

AgRg in REsp 1545129/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 05/24/2016, DJE 06/01/2016

HC 341534/SC, Rel. Justice Ericson Maranho (TJ/SP Judge), judged on 04/05/2016, DJE 04/19/2016

HC 339946/RS, Rel. Minister Jorge Mussi, Fifth Panel, judged on 04/07/2016, DJE 04/13/2016

See also the journals (updated to date of publication):

Jurisprudence Information No. 0577, published on March 22, 2016.

Judge who initiates the questioning: It is not up to the judge, at the hearing for the investigation and trial of a criminal proceeding, to start questioning the witness, and only complementing the questioning of the points that have not been clarified. granted the order of habeas corpus, to recognize the nullity of the criminal process from the instruction hearing, with the necessary renewal of the act ( HC 187035/SP, rapporteur Min. Marco Aurélio, judgment on 4.6.2021 ).

Rejection of questions

Rejection of questions:  The judge may reject questions from the parties that may induce the answer, are unrelated to the cause or imply the repetition of another already answered. The party may challenge the rejection, and the incident must be recorded in the minutes. If the rejection of the question implies a restriction of defense, it is up to the defender to claim nullity.

Questions unrelated to the case:  The judge may reject questions that “are not related to the case”. The magistrate must be very careful when rejecting this type of question. Questions, especially those from the defense, are sometimes only apparently unrelated to the case. It is because they concern an alibi that is still unknown to “the cause”.

Fim

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