Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 400º CPP – The instruction and judgment hearing.

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Art. 400. At the instruction and trial hearing, to be held within a maximum period of 60 (sixty) days, statements from the offended party will be taken, the witnesses listed by the prosecution and the defense will be questioned, in that order, except for the provisions of article 222 of this Code, as well as clarifications by experts, confrontations and recognition of persons and things, after which the accused is questioned. (Wording provided by Law No. 11,719 of 2008).
§ 1 The evidence will be produced in a single hearing, and the judge may reject those considered irrelevant, impertinent or delaying. (Included by Law No. 11,719 of 2008).
§ 2 The clarifications of the experts will depend on the prior request of the parties. (Included by Law No. 11,719 of 2008).

Audience of instruction and judgement

Statements by the victim:  See  Article 201 .

Examination of witnesses:  See  article 222  et seq.

Expert hearing : See Article  159, paragraph 5 .

Confrontations:  See  articles 229  and  230 .

Recognition of persons and things:  See  articles 226 , 227 and 228.

Interrogation of the accused:  See  Article 185 et seq .

Defendant who justifiably does not appear:  See  this same subtitle in the title Obligation to provide the opportunity for interrogation  in notes to article 185.

60-day deadline for the hearing:  From the decision rejecting the arguments and reasons for the prior defense, the hearing must be scheduled within a maximum period of 60 days. Failure to comply with this deadline if the defendant is in prison, if without reason, represents an excess of time in the formation of guilt, which constitutes the cause of illegality of preventive detention. See our annotations to Article 312 under the heading  Duration of the preventive measure .

Nullity due to lack of intervention by the Public Ministry:  The intervention of the MP is necessary to give effect to the accusatory and contradictory principles. Failure to intervene can harm both the prosecution and the defense. The prosecution, for obvious reasons. To the defense because the absence of an accuser can produce conditions for the judge to assume an inquisitive position. The accused has the right to an accuser. It is the guarantee that the judge will remain equidistant from the parties, without having to play the role of one of them.  The lack of intervention by the Public Ministry in all terms of the action brought by it constitutes absolute nullity ( article 564, item III, letter “d”, first part). Otherwise, the lack of intervention in all the terms of the intent by the offended party, when it comes to a crime of public action, implies relative nullity ( article 564 , item III, “d”, second part, combined with  article 572 ) . The lack of ministerial intervention in the action brought by the offended party, in the case of a private action crime, results in relative nullity ( article 564 , item IV). Plaintiff, defendant, prosecutor, that is, the one who demonstrates interest, may, in theory, argue nullity. 

Doctrine

Cirilo Augusto Vargas. The “dynamic” perspective of the adversarial principle .  Anadep.

Helom César da Silva Nunes:  The seat of the public defender as evidence of the Democratic Justice System. Anadep

Ígor Araújo de Arruda:  Hearing of criminal instruction without a prosecution body and the “impartial protagonism ”. Anadep

Karine Azevedo Egypto Rosa:  The scenic layout of courtrooms and Brazilian courts: the unconstitutionality of the prerogative of the Public Prosecutor’s Office in criminal proceedings .  Legal scope.

Rogerio Schietti Cruz:  Advertising and Confidentiality in Modern Criminal Procedure . Metajus.

Rômulo de Andrade Moreira:  New Uruguayan CPP changed from inquisitorial to accusatory system . Conjure

Jurisprudence

Correspondent lawyers acting on their own behalf. Separate interrogation:  Not even the circumstance that the co-defendants are lawyers – acting in their own cause – removes the rule of art. 191 of the CPP ( HC 101.021/SP, rel. Min. Teori Zavascki, judged on 5/20/2014, judgment published in the DJE of 6/9/2014  – Newsletter 747, Second Panel).

Interrogation of the patient on the same day that he was just requested to appear in court. Absence of nullity:  It does not constitute absolute nullity of the criminal process – due to the alleged absence of a valid summons – the interrogation of the patient on the same day that he was only requested to appear in court ( HC 98.434/MG, rel. min. Cármen Lúcia, judged on 20-5-2014, judgment published in the DJE of 30-9-2014  – Bulletin 747, First Panel).

The designation of a dative or ad hoc lawyer for a hearing is regular when the public defender is unable to participate: The  appointment of a dative or ad hoc lawyer for a hearing in which the public defender is unable to participate does not violate the principle of the natural public defender ( HC 123.494 , rel. Min. Teori Zavascki, judgment on 16-2-2016, DJE of 2-3-2016  – Bulletin 814, Second Panel).

Prosecutor’s absence from hearing. Defense silence on the fact. Preclusion:  The fact that, in an instruction hearing, the magistrate, after registering the absence of the representative of the MP (who, even summoned, did not appear), complements the questioning of the witnesses carried out by the defense, without the defender has risen up at the opportune moment or shown effective damage ( REsp 1.348.978-SC, Reporting Judge Rogerio Schietti Cruz, Reporting Judge for judgment Justice Nefi Cordeiro, judged on 12/17/2015, DJe 2/17/2016 – Newsletter n. 577 ).

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. Minister 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.

The audiovisual record of testimonies collected within the scope of the criminal proceedings does not need to be recorded or transcribed, in favor of the principles of reasonable duration of the process and procedural speed, unless the need is demonstrated. Source: Jurisprudence in theses (STJ).

Judgments:

HC 336112/SC, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 10/24/2017, DJE 10/31/2017

RMS 036625/MT, Rel. Minister Rogerio Schietti Cruz, judged on 06/30/2016, DJE 08/01/2016

RMS 034866/MT, Rel. Minister Nefi Cordeiro, judged on 10/06/2015, DJE 10/29/2015

HC 177195/SP, Rel. Minister Laurita Vaz, Fifth Panel, judged on 08/26/2014, DJE 09/02/2014

RHC 040875/RS, Rel. Minister Marco Aurélio Bellizze, Fifth Panel, judged on 04/24/2014, DJE 05/02/2014

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

Interrogation as a formal act. Invalidity of the “interview”:  There is a violation of the right to silence and non-self-incrimination, established in the decisions handed down in ADPFs 395 and 444, with the carrying out of forced interrogation, disguised as an “interview”, formally documented during the execution of a search warrant and seizure, in which the subject of the due diligence was not given the right to consult his lawyer in advance, nor was the right to remain silent and not to produce evidence against himself certified, in the said report, under the terms of the legislation and precedents transcribed ( Complaint 33,711 min. Gilmar Mendes, year 2019 ).

Interrogation as the last act of gathering evidence

Timing of interrogation in common and special procedures: Before Law n. 11,719/2008, the interrogation was carried out immediately after the receipt of the complaint, that is to say, before the existing evidence against the accused was collected. Law no. 11.719/2008, giving new wording to article 400 of the CPP, reversed this situation by positioning the interrogation at the end of the hearing, after questioning the witnesses and collecting the other evidence. This new procedure makes the rule of full defense more efficient, as the accused is given the opportunity to justify and contradict everything that was found against him. The process lost in inquisitority and gained in its meaning as a citizen’s guarantee. In the common procedure, in the ordinary, summary and very summary rites, the interrogation takes place at the end of the hearing. The ordinary by determination of article 400, the summary by reason of the article 533  and the summary by order of  article 81 of Law 9099/95. What about the special procedure? Does the new rule inserted in the CPP apply to special processes? When the law (the CPP or special law) provides for a specific procedure for the processing of a certain crime, that procedure is said to be special. It has been understood that in this procedure, with regard to the moment of the interrogation, whatever is established therein is valid. As an example, in the military criminal proceedings, STM Precedent 15 (cancelled on 05.17.2016) specifically regulated the issue and said that the amendment to article 400 of the CPP, brought by Law No. to consider the interrogation as the last act of the criminal instruction, it did not apply to the Federal Military Justice. Most of the special legislation in force was enacted under the influence of the previous system. Therein resides, exclusively, the reason for the position of interrogation in it is soon after receipt of the complaint. We believe that it would be a matter of logic, or coherence, for all this legislation to be amended in the part that concerns the procedural moment in which the interrogation takes place. If this is the new position of the legislator, who considers that it is the one that best serves the Criminal Justice, then it is to be expected that all the special legislation that orders the carrying out of the interrogation before the collection of the existing evidence against the accused. But while this does not happen – and most likely will not happen – it is necessary to elaborate the logical interpretation of the system with a view to putting interrogation in its proper place in the special procedures. With the amendment of article 400 of the CPP, the meaning of interrogation as a means of defense was intensified to the detriment of its valuation as an inquisitorial means of obtaining evidence, since it allows the accused to know all the evidence against him, thus enabling him to make an effective defense. The special norm prevails over the general norm when it is incompatible with it. Now, as in the case, if the general norm is a manifestation of a trend in the direction of the legal order, valuing the meaning of the process as an individual guarantee, and there is no incompatibility with the special norm, there is no plausible reason for the option not to prevail by the application of the general rule. The legal order must present itself as a normative fabric in harmony. There are no reasons that justify the coexistence of two distinct (almost opposite) realities, a general reality of interrogation at the end of the investigation (accusatory) and another specific one at the beginning of the investigation, when the accused does not even have knowledge of the evidence that will be produced against him (inquisitive). Now, there is a lack of logic, conformity and coherence in the coexistence of two contrary procedural realities, one accusatory and the other inquisitive. But at this point it is necessary – in fact, this is a preliminary question – to ask an important question: to what extent is the norm that puts the questioning at the beginning of the hearing in the special laws a special norm? As is known, there are general norms in special laws and also special norms in general laws. It does not seem that the norm that places interrogation at the beginning of the hearing in the special laws is a special norm. In the end, what specific purpose does it serve with regard to the prosecution of crimes dealt with in the special rule? None. Interrogation is at the beginning of the hearing in the special laws for one reason only, namely, to follow the general flow emanating from the original wording of the CPP, which provided for interrogation at the beginning of the hearing. Now, if the source (in the CPP) has changed, it is to be expected that it will also change in the special laws. The jurisprudence of the STF and STJ persists maintaining that the rule of interrogation at the end does not apply to special procedures (this sentence was written before there was a change in jurisprudence – currently the understanding is that the interrogation must be at the end in all processes – 2018). However, we found an isolated judgment that examined the issue in a different way and that is in line with our thinking: “Article 400 of the Code of Criminal Procedure, as amended by Law 11,719/2008, established the interrogation of the defendant as the final act of the criminal investigation. Since such a practice is beneficial to the defense, it must prevail in criminal actions originating before the Federal Supreme Court, to the detriment of what is provided for in article 7 of Law 8.038/90  in this regard. Exception only for actions in which the interrogation has already ended” (AP 528 AgR – DF Minister Ricardo Lewandowsky).

Moment of interrogation in criminal actions originating before the STF and STJ:  See the title  Moment of interrogation in common and special procedures  in the present provision of the CPP (article 400).

Timing of the interrogation and the Drugs Law : The jurisprudence has mistakenly understood (in 2016) that the timing of the interrogation in the Drugs Law is after the questioning of witnesses. Wrong because  article 57 of Law n. 11.343/2006  provides that  at the instruction and trial hearing, after the interrogation of the accused and the questioning of the witnesses, the floor will be given, successively, to the representative of the Public Prosecution Service and the defender of the accused, for oral support, for a period of 20 ( twenty) minutes for each one, extendable for another 10 (ten), at the discretion of the judge.   Now, the device does not clarify what comes before and what comes after, whether the questioning of witnesses or whether the interrogation. It just says that after questioning the accused and questioning the witnesses, the floor will be given (…),  without obliging compliance with any order of these procedural acts. Under these conditions , paragraph 5 of article 394 is fully applicable  , by which  the provisions of the ordinary procedure apply subsidiarily to the special, summary and very summary procedures.

Doctrine

Flavio Meirelles Medeiros:  The interrogation must be at the end of the instruction also in special procedures . Jusbrasil.

Guilherme Nucci:  Interrogation by videoconference and ample defense . William Nucci.

Lenio Luiz Streck:  2 in 1: The prohibition of the defendant’s silence and the prohibition of overcoming precedents . Conjure

Pedro Canário:  Preventing a lawyer from guiding clients is restricting their defense, warn criminal experts . Conjure

Jurisprudence – Moment of interrogation. At the end of the instruction

Interrogation is not at the end of the instruction in military jurisdiction:  For cases subject to military jurisdiction, the military criminal procedural norm prevails, so that the application of the rite provided for in art. 400 of the Criminal Procedure Code (CPP), as amended by Law 11,719/2008. Therefore, there is no need to speak of departure from art. 302 of the Code of Military Criminal Procedure ( HC 122.673/PA, rel. Min. Cármen Lúcia, judged on 6/24/2014, judgment published in the DJE of 8/1/2014  – Bulletin 752, Second Panel). 

Interrogation under the drug law:  In the trial of crimes provided for in Law 11.343/2006, it is legitimate for the defendant to be interrogated before the witnesses are heard ( HC 245.752-SP, Reporting Justice Sebastião Reis Júnior, judged on 2/20 /2014 – Bulletin nº 535 ). 

Interrogation under the drug law:  The fact that, in the trial of the crimes provided for in Law 11.343/2006, the hearing of the defendant occurs after the witnesses have been questioned  (HC 275.070-SP, Reporting Minister Laurita Vaz, judged on 18 /2/2014 – Newsletter nº 536 ). 

The rite provided for in art. 400 of the CPP does not apply to crimes contained in the Drug Law:  As a result of the application of the principle of specialty, the rite provided for in art. 400 of the Code of Criminal Procedure (CPP) – as amended by Law 11.719/2008 – does not apply to the offenses contained in Law 11.343/2006 ( HC 121.953/MG, rel. min. Ricardo Lewandowski, judged on 6-10- 2014, judgment published in the DJE of 7/1/2014 – Bulletin 750, Second Panel).

Interrogation not performed at the end of the instruction. Nullity:  Failure to carry out the interrogation at the end of the instruction deprived the defendant of the possibility of personally expressing his opinion on the accusatory evidence collected in his disfavor and, in the exercise of the right to be heard, influence the formation of the conviction of the judge. Obvious harm. Absolute nullity configured ( Minister Dias Toffoli – STF – HC 121907 – 09/30/2014 ).

It is possible to postpone the interrogation in the procedure of Law 8038/1990 until after all the evidence has been collected:  It is possible to postpone the interrogation, even in the procedure of Law 8038/1990, until the end of the instruction, allowing the accused the exercise of self-defense only after collecting all the evidence ( HC 116.653/RJ, rel. Min. Cármen Lúcia, judged on 2/18/2014, judgment published in the DJE of 4/11/2014  – Newsletter 736, Second Panel). 

Interrogation not performed at the end of the instruction. Nullity:  Failure to carry out the interrogation at the end of the instruction deprived the defendant of the possibility of personally expressing his opinion on the accusatory evidence collected in his disfavor and, in the exercise of the right to be heard, influence the formation of the conviction of the judge. Obvious harm. Absolute nullity configured ( Minister Dias Toffoli – STF – HC 12190 – 09/30/2014 ).

Interrogation at the end of the criminal investigation applies to the military criminal procedure and to all procedures of the special legislation:  The requirement to conduct an interrogation of the accused at the end of the criminal investigation, provided for in art. 400 of the Code of Criminal Procedure (CPP), as amended by Law 11.719/20081, applies to military criminal proceedings, electoral criminal proceedings and all criminal proceedings governed by special legislation ( HC 127.900, rel. min. Dias Toffoli, judgment on 3-3-2016, DJE of 8-3-2016  – Bulletin 816, Second Panel). 

Interrogations in special laws. Last act of instruction. Procedures governed by special laws must observe, as of the publication of the judgment minutes of HC 127.900/AM of the STF (03.11.2016), the rule set forth in art. 400 of CPP: Narcotics trafficking. Interrogation time. Last act of instruction. New understanding signed by Excelso in the scope of HC 127.900/AM. Effects modulation. Publication of the minutes of judgment. Accused interrogated at the beginning of the instruction. Procedures governed by special laws must observe, as of the publication of the judgment minutes of HC 127.900/AM of the STF (03.11.2016), the rule set forth in art. 400 of the CPP, whose content determines that the interrogation is the last act of the criminal instruction (…) in the judgment of HC n. 127,900/AM, Rel. Min. Dias Toffoli, DJe 3/8/2016, the Supreme Court, by its Plenary, carried out a re-reading of article 400 of the CPP, in the light of the adversarial constitutional system and the principles of the adversarial system and full defense. At that sitting, he recognized himself, because it is more compatible with the postulates that inform the constitutional status of the right of defense, a normative evolution on the matter, so that, because it is more favorable to the defendant and because it proves to be more in line with the new requirements of the process democratic criminal law, the norm contained in art. 400 of the CPP, in the wording given by Law n. 11.719/08, should radiate effects over the entire criminal procedural system, branching out and removing provisions to the contrary, even in procedures governed by special laws (…) it is important to emphasize that, in compliance with the principle of legal certainty, the modulation of the effects of the decision of the Supreme Court, whereby the new interpretation given would only be applicable from the publication of the minutes of that judgment, which took place on 03.11.2016 (DJe n. 46, published on 03/10/2016).STJ, HC 397.382-SC, Rel. Min. Maria Thereza de Assis Moura, unanimously, judged on 8/3/2017, DJe 8/14/2017 – Newsletter 609 ).

Moment of interrogation in military justice : The provisions of art. 400 of the Code of Criminal Procedure regarding the moment of interrogation of the accused does not apply to the military criminal process ( HC 132.847, rel. min. Marco Aurélio, DJE of 12-9-2018 ). 

Interrogation of the accused as the last act to be carried out: It is unnecessary to prove damage for the recognition of nullity resulting from non-compliance with the rite provided for in art. 400 of the Code of Criminal Procedure, which determines that the interrogation of the accused is the last act to be carried out ( REsp 1.808.389-AM , Reporting Min. Rogerio Schietti Cruz, Sixth Panel, by majority, judged on 10/20/ 2020, DJe 11/23/2020).

witnesses

Replacement of a witness not located:  The former wording of  article 397  was as follows: “If any of the witnesses is not found, the judge may grant the request for replacement, if this request is not intended to frustrate the provisions of articles 41, in fine, and 395.” In the current text of the CPP this provision was not repeated. However, such an omission does not mean that the party does not have the right to replace the unlocated witness. Ada Pelegrini Grinover, Antonio Scarance Fernandes and Antonio Magalhães Gomes Filho, regarding the changes produced by Laws 11,689/2008 and 11,719/2008, comment that (…) the party’s right to pronounce on a witness who has not been located and be able to replace him cannot be suppressed, as this is an expression of the constitutional right to evidence. Thus, if the witness is missing because he has not been found, and the party has requested his subpoena, he must have the opportunity to express himself in this regard, replacing him immediately or requesting a deadline to manifest himself. If the hearing proceeds, without the party having had the opportunity to comment on the witness not located, there will be nullity  (As nullidades no penal procedural, Ed. RT, 12th edition, 2011, p. 149). The jurisprudence of the STF and STJ is in this sense. The CPC addresses the issue in  Article 451 .

Witness not located, hearing, diligence and nullity: It may happen that the questioning of the witness is of fundamental importance for the thesis supported by one of the parties and that the simple replacement of it by another does not represent the solution. Once the witness is listed, the party acquires the right to have the witness heard. If it is not heard, it is cause for nullity, which must be argued. If the witness does not appear at the hearing, a new hearing must be scheduled for his or her hearing. Although not expressly provided for by law, it is the right of the party to take steps to locate the witness, and for this purpose the magistrate may be required to seek, among other measures, the assistance of the police authority with a view to locating him. If the judge, without the agreement of the party that listed it, dispenses with the hearing of the failing witness, there will be nullity, hearing ( article 571, item VIII ).

Order of questioning of witnesses: If the witness does not appear, the hearing is suspended. Suspension of the hearing implies continuing it on another date. Note: it will only be suspended after the witnesses present have been questioned. However, the order cannot be reversed. Prosecution witnesses should be questioned first. Then the defence. If the defense agrees, the order can be reversed. Inversion of the order without the agreement of the defense when witnesses for the defense and the prosecution have witnessed the same circumstances relating to the criminal hypothesis constitutes absolute nullity. The contradictory production of evidence is an essential act of the process.

Whistleblower must be questioned first: Whistleblower must be questioned before the defense witnesses.

The order to question the witnesses and issuance of precatoria :  First the witnesses of the prosecution must be heard. Then the defense. The inversion of this order results in nullity, unless there is agreement by the defense or if the defense witnesses heard first were only supportive. We understand that even in the case of issuance of a precatory letter, there can be no reversal of the order. In our view, the exception to  Article 222  (inquiry by letter rogatory) is not due to the order, but to the questioning of a witness at a hearing. That is to say, what the device means is that the witnesses will be heard in a hearing,  unless those who are questioned by precatory. This understanding is based on the fact that obedience to the order to hear witnesses is of fundamental importance for the exercise of full defense. Only by knowing in advance what the prosecution witnesses have to say, can the defense propose the correct questions to the defense witnesses who have witnessed the imputed fact. Understanding it differently, that is, that disobeying the order is authorized with the issuance of a precatoria, is unconstitutional in view of the violation of the rule of full defense. And more: it does not convince the argument that  paragraph 2 of article 222 would authorize the trial regardless of the questioning of the witness by precatoria, since such a device flagrantly violates not only the ample defense but also the contradictory. If this device were valid, in the event that all the witnesses of one of the parties (prosecution or defense) were heard by precatoria, and such diligence was not carried out in time, the judge would be authorized to judge the case. Now, such a hypothesis is absurd, since the judge could judge based only on the testimonies of the prosecution or defense witnesses. It is the same as authorizing the judge to decide without carrying out the instruction. Strictly speaking, given the current stage of criminal procedural science, it is unbelievable that  paragraph 2 of article 222  has not been deleted from the Code of Criminal Procedure.

The ideal of the single hearing:  By provision of article 400 et seq., the instruction, the debates and the sentence must, if possible, take place in a single hearing. In practice, this is often not possible. Not only due to the diligence that may be necessary, but also due to the absence of witnesses and other reasons. Terms in which the fractionation of the audience is common, that is, another audience needs to be designated to continue.

Doctrine

João Paulo Oliveira Dias de Carvalho:  On the personal subpoena of the defendant to rectify the statement of testimonial evidence . Anadep.

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

Guilherme Nucci:  The Reform of Criminal Procedure and the Consecration of Orality . guilhermenucci.com.br.

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