Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 213 CPP – Personal assessments.

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Art. 213. The judge will not allow the witness to express his  personal assessments, except when they are inseparable from the narrative of the fact.

Prohibition of expressing personal opinions

Correct understanding:  This device is sometimes not well understood. It is not a question of limiting the testimony to what was perceived by the senses. The witness’s impressions of the fact are also important. What the law prohibits is for the witness to make displaced assessments of the narrative, that is to say, disconnected from the facts about which he is testifying. It is by listening to the witness’s personal impressions – related to the report – that the judge better understands his position in the general context of the facts, his eventual interests, antipathies, sympathies, being able, in this way, to have more information to assess his credibility. The criminal procedure will have an accusatory structure, the judge’s initiative being prohibited in the investigation phase and the substitution of the evidentiary role of the prosecution body.

Impossibility of ex officio intervention by the judge: Considering the wording of article 3-A , according to which the criminal procedure will have an accusatory structure, the substitution of the evidentiary action of the prosecution body is prohibited, it is not up to him, the judge, to determine what it is, or what is not, personal appreciation. There is a fine line between personal appreciation and proof. It is up to the parties, prosecution or defense, to intervene (and the judge decides) with the aim of preventing the witness from making personal assessments. It is the parties, not the judge, who can assess whether or not the assessments made by witnesses are personal. Otherwise, the judge will be allowing himself to limit the evidence that may be of interest to one of the parties and constitute a complement to the search for the truth.

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