Art. 402. Once the evidence has been produced, at the end of the hearing, the Public Prosecutor’s Office, the complainant and the assistant and, subsequently, the accused may request measures whose necessity arises from circumstances or facts ascertained in the instruction. (Wording provided by Law No. 11,719 of 2008).
Due diligence requirement
Origin in facts found in the instruction: Once the instruction is over, the parties may ask the judge to carry out new steps with a view to obtaining more evidence. However, the new diligences are only justified if they aim to collect evidentiary material that originates from circumstances or facts ascertained in the course of the instruction.
Time to attach evidence produced in the investigation: This is the moment that the parties have to attach evidence produced in the investigation. But not any proof. Only those whose need to join arises from circumstances or facts ascertained in the instruction. The request must be enclosed must be substantiated. We develop this subject in the title Destination of the investigation documentation , in comments to Article 3-C.
Judge’s decision and appeals: The judge must make a reasoned decision on whether or not to carry out the procedure. If he considers that the required step is irrelevant, impertinent or delaying, he may, based on paragraph 1 of article 400 , reject it. Against this decision, the defense may file a habeas corpus and the prosecution may file a writ of mandamus. The nullity may also be argued at a hearing on the grounds of curtailment of defense, or even the right to accuse.
Notification of the parties of the outcome of the due diligence : Obviously, it is not enough to determine that the required due diligence is carried out. Once effected, it is necessary, based on the adversary principle, that the parts of the result be given view.