Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 401 CPP – Number of witnesses.

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Art. 401. In the instruction, up to 8 (eight) witnesses may be questioned by the prosecution and 8 (eight) by the defense. (Wording provided by Law No. 11,719 of 2008).
§ 1 This number does not include those that do not provide a commitment and those referred to. (Included by Law No. 11,719 of 2008).
§ 2 The party may withdraw from the questioning of any of the witnesses listed, with the exception of the provisions of article 209 of this Code. (Included by Law No. 11,719 of 2008).

number of witnesses

Maximum number of witnesses:  The parties may list a maximum of eight witnesses in the ordinary proceedings, five to be heard in the Plenary of the Jury ( article 417, paragraph 2  and  article 421, sole paragraph ), five in the summary proceedings ( article 539 ), and, in the absence of legal provision, five in summary. The same number as the summary, since in view of the legal omission, the rights of the parties cannot be restricted. The analogy to the civil procedure of the special courts, which limits the maximum number to three, is not authorized, since the evidence in civil and criminal proceedings has different value and importance.

Number of witnesses, more than one fact and more than one accused:  There will be eight witnesses for each fact. If the prosecution charges the accused with more than one crime, it may enlist eight witnesses for each. The same goes for the defense, eight witnesses for each offense charged. If there is more than one accused, each of them has this right. Giving an example: Two accused, imputation of two crimes for each: each accused has the right to list sixteen witnesses. 

About witnesses:  See our notes to  Articles 202 et seq .

Offended:  Does not count as a witness, since he does not testify as such.

Withdrawal of the party:  The defender or the Public Prosecutor may withdraw from the questioning of the witness they enlist. This waiver obliges the judge. Article 209 was tacitly revoked, given that  Article 3-A , introduced into the system by Law n. 13,964/2019, prohibits the  judge from substituting the evidentiary performance of the prosecution body . 

Enrollment of witnesses greater than the maximum number : It is not null and void for the party to enlist witnesses in excess of the legally permitted number. Witnesses questioned ex officio by the judge ( Article 209 ) are those who exceed the maximum number. It should be noted that even after the deadlines for the parties to list their witnesses have expired, they may, in a reasoned manner, request the judge to hear more witnesses ex officio than those indicated.

Witness Replacement Not Found:  See  this same subheading under the Witnesses  heading in our notes to Article 400.

Witness who knows nothing:   According to  article 209, paragraph 2 , a person who knows nothing of interest to the decision of the cause will not be computed as a witness.

Witnesses who do not pledge:  Witnesses who do not pledge are not counted. Those, under the terms of  articles 206  and  208 , are the sick, mentally disabled, under 14 (fourteen) years old, the accused’s ascendant, his descendant, the in-laws in a straight line, the spouse, even if divorced, the brother, the father, mother and adopted son. By analogy, the legally separated spouse, the divorced spouse, the partner with a stable relationship, even if this relationship has ended, are also not computed.

Doctrine

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

Jurisprudence

Complaint that lists more witnesses than authorized :  There is no nullity in the complaint that lists eleven witnesses, all heard in the instruction (RT 588/307).

Subpoena from the Public Prosecutor’s Office for the addition of the witness list and nullity:  The subpoena from the Public Prosecutor’s Office so that it indicates the evidence it intends to produce in court and the inclusion of the list of witnesses by the prosecution, after the presentation of the complaint, but before the formation of the procedural relationship, are not causes, by themselves, of absolute nullity ( RHC 37.587-SC, Judge Reynaldo Soares da Fonseca, judged on 2/16/2016, DJe 2/23/2016 – Newsletter n. 577 ). 

Denunciation after the deadline and list of witnesses:  Failure to comply with the deadline for offering the complaint does not affect the right to present the list of witnesses ( HC 131.158, rel. min. Edson Fachin, judgment on 4/26/2016, DJE of 9-14-2016  – Bulletin 823, First Panel). 

It is possible for the prosecution assistant to enlist 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 (Jury Court) 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

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