Art. 155. The judge will form his conviction by freely assessing the evidence produced in a judicial contradictory, and cannot base his decision exclusively on the information collected in the investigation, with the exception of precautionary, non-repeatable and anticipated evidence.
Single paragraph. Only as to the status of persons will the restrictions laid down in civil law be observed.
Purpose, sharing of means of proof and evidence of the investigation
Object of the evidence: It is not only the criminal hypothesis contained in the complaint that is the object of the evidence, but every thesis relevant to the application of the criminal law, and its circumstances, that arise in the course of the process, whether favorable to the defense or the prosecution.
Communion of means of proof: It means not only that the parties and the judge can bring evidence to the file, but also that the evidence, once filed, benefits everyone.
Evidence from the inquiry: The evidence from the inquiry is valid for convincing, provided that it is repeated in court and is in harmony with that collected during the procedural instruction. They can be useful both to the prosecution and also to the defense. If confirmed by the procedural instruction, they favor the prosecution. If in contradiction and disharmony, they contribute to the declaration of innocence. See title Probative value of the survey , in comments on Article 4 of the CPP.
Doctrine
Aury Lopes Jr and Alexandre Morais da Rosa: (un)conscious contamination of the judge and physical exclusion from the investigation . Conjure
Gustavo Badaró: Right to proof and the logical limits of its admission: the concepts of pertinence and relevance . Badaroadvogados.
Jorge Emanuel Mendes Valente Dias : Considerations on Evidence and Adversary in the Investigation Phase of Criminal Procedure . Portuguese University.
Luciano André da Silveira e Silva : The undercover agent. Comparative study of legislation in Germany, Brazil and Portugal . Coimbra University.
Henrique Hoffmann Monteiro de Castro : Law 13.441/17 instituted virtual police infiltration . Conjure
Jurisprudence
Proof of minors of victims of sexual crimes: In sexual crimes against the vulnerable, the lack of birth registration in a civil registry office is not an impediment to proving that the victim was under 14 years of age at the time of the events (STJ, AgRg in AREsp 12.700-AC, winning vote Judge Judge Walter de Almeida Guilherme – Judge summoned from TJ/SP – , Judge for judgment Judge Gurgel de Faria, judged on 3/10/2015, DJe 6/5/2015 – Newsletter 563).
The evidence initially produced in the inquisitorial sphere and re-examined in the criminal investigation, observing the contradictory and ample defense, do not violate article 155 of the Code of Criminal Procedure – CPP, since any irregularities that occurred in the police investigation do not contaminate the resulting criminal action. Source: Jurisprudence in theses (STJ).
Judgments:
AgRg in EDcl in AREsp 1006059/SP, Rel. Minister Nefi Cordeiro, judged on 03/20/2018, DJE 04/02/2018
AgInt no AREsp 1168591/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 02/20/2018, DJE 02/28/2018
HC 381186/DF, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 09/26/2017, DJE 10/06/2017
AgRg in AREsp 609760/MG, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 03/21/2017, DJE 03/29/2017
HC 371739/PR, Rel. Minister Maria Thereza de Assis Moura, judged on 12/06/2016, DJE 02/02/2017
AgRg no HC 256894/MT, Rel. Minister Sebastião Reis Júnior, judged on 06/14/2016, DJE 06/30/2016
Expertise and documents produced in the inquisitorial phase are coated with probative efficacy without the need to be repeated in the course of the criminal action because they are subject to the deferred adversarial procedure. Source: Jurisprudence in theses (STJ). Source: Jurisprudence in theses (STJ).
Judgments:
AgRg in REsp 1522716/SE, Rel. Minister Antonio Saldanha Palheiro, judged on 03/20/2018, DJE 04/05/2018
AgRg in AREsp 1032853/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 02/27/2018, DJE 03/07/2018
AgRg in AREsp 521131/RS, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 02/08/2018, DJE 02/21/2018
HC 413104/PA, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 02/08/2018, DJE 02/15/2018
AgRg in AREsp 814370/PE, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 09/21/2017, DJE 09/27/2017
AgRg in AREsp 312502/DF, Rel. Minister Felix Fischer, Fifth Panel, judged on 06/13/2017, DJE 08/01/2017
Pronunciation based exclusively on the investigation : Pronouncement based exclusively on elements collected in the police investigation is illegal ( HC 589.270/GO , Judge Sebastião Reis Júnior, Sixth Panel, unanimously, judged on 02/23/2021).
What needs and what does not need to be proved
Notorious fact: A fact that is widely known by all. It doesn’t need to be proven.
Fact presumed by law: It does not need to be proved. The non-accountability of minors under 18, for example.
Irrelevant or impertinent facts: Irrelevant facts do not need to be proved. The judge may reject their evidence. Irrelevant facts are those that are unrelated to the theses, and their circumstances, discussed in the process and whose proof is of no use to the solution of the cause.
Evident facts: They are manifest, obvious, there is no reason to prove them twice.
Proof of legislation: Article 376 of the CPC provides that “the party claiming municipal, state, foreign or customary law shall prove its content and validity, if the judge so determines”.
Alleged and uncontested facts: Contrary to what happens with the rights available in civil proceedings, the uncontested allegation in criminal proceedings is not presumed to be true. This rule is a consequence of the principle of real truth.
Uncontroversial facts: The situation of there being no controversy about a certain fact or circumstance does not result in the presumption that it is true. The incontrovertible needs to be proved. Real truth prevails. There is no disposition of the parties about the truth.
Doctrine
Gustavo Badaró: Right to proof and the logical limits of its admission: the concepts of pertinence and relevance . Badaro lawyers.
Eduardo Cambi. The right to evidence in civil proceedings . br. revista.ufpr.br.
Evidence
Means of proof: These are the ways or actions that lead to obtaining evidence. Among others, there is documentary, testimonial, expert evidence, judicial inspection, interrogation.
Facts of particular knowledge of the judge : They cannot be taken into account to decide, otherwise there would be damage to the ample defense and to the contradictory.
Freedom of evidence : Freedom of evidence is not absolute. It suffers limits as to the status of people in which civil law holds. Evidence cannot be obtained by illegal means.
Borrowed evidence: Evidence brought from another process is admitted. However, if the same parties did not participate in the other process, its value is reduced.
Presentation of a new document at the trial by the jury: During the trial, it is not allowed to read a document or display an object that has not been attached to the file at least three (3) business days in advance, with the other party being informed ( Article 479 ). The term document does not include doctrinal books or jurisprudence texts.
Doctrine
Gustavo Badaró: Evidence borrowed in criminal proceedings and the use of elements collected in Parliamentary Commissions of Inquiry . badaro lawyers
how to prove
Proof of death: Article 62 : “ In the case of the death of the accused, the judge shall only declare the punishment extinct upon receipt of the death certificate, and after hearing the Public Prosecutor’s Office”,
Proof of Minority: Precedent 74 of the STJ – “For criminal purposes, the recognition of the defendant’s minority requires proof by a competent document”. Therefore, it is not essential to present a birth certificate. Skilled document is sufficient to prove the minor.
Controversy about the marital status of a person: If the decision on the existence of the offense depends on the solution of a dispute, which the judge deems serious and founded, on the marital status of the persons, the course of the criminal action will be suspended until the civil court is the dispute settled by a final judgment, without prejudice, however, to the questioning of witnesses and other evidence of an urgent nature ( article 92 ).
Evidence, Conviction, and Proof
Unraveling the mystery of evidence: evidence is the indicative circumstance that a fact exists, existed or will exist. Dark, overcast clouds are signs of rain. A rooster crowing is a sign that dawn is coming. Entry of south wind is a sign of cold. The probability of the indication, or signaling, is variable, and hence, greater or lesser strength of the indication is considered. Usually it is the rules of experience that know the strength of the evidence. This force can be so intense as to generate conviction, and hence the evidence, alone, acquires the status of proof. All evidence is, rather, evidence. Usually, evidence alone is not proof. To become proof they need to lean on each other. Almost always, evidence consists of a set of evidence, some supporting each other, complementing, interacting and confirming each other. It is in a group and in interaction that they are able to generate conviction, the subjective element that integrates the concept of proof.
One ball is evidence, two are proof: Evidence is the demonstrated, proven circumstance that suggests that another is occurring, or has occurred, or will occur. Walking on the sidewalk, looking at the ground, seeing small green chinaberry seed pellets suggests (not certain, but suggests, insinuates, indicates, points out) that one is under a chinaberry tree. If it is a sunny day, and there is shade on the sidewalk where the seed is located, this is yet another indication of the existence of a tree above. If there are no buildings or tall houses in the surroundings to justify that shadow, there is another indication that it is a tree. If more chinaberry seeds appear scattered on the sidewalk, there are already several signs. If this character who is walking has a good sense of smell and notices the characteristic smell exhaled by chinaberry, then he can be convinced that above him there is a chinaberry tree. Given the set of existing evidence, and being convinced, he will consider proven that there is a chinaberry tree above him. This is because proof is the set of evidence capable of authorizing the conviction as to the existence of a fact.
Conviction. Strength at the service of uncertainty: Conviction is conviction, certainty. There is a certain rationality in these synonyms. But it is also belief, faith, which is no longer so rational. Conviction must be very old in man. It is indispensable to the choices of conduct. Let’s imagine a distant relative of the genus Homo, about 1.5 million years ago on a tree branch, undecided between picking the fruit from the branch above and the one on the ground. At some point, he, no matter how rudimentary the functioning of his brain was, makes a decision, and this decision is necessarily preceded by something similar to what we call conviction today, since it is not credible that his decisions were all random. Yes, we are speculating. Conviction seems essential to us, even for survival, for fighting, for defending oneself. If we walk down a dark street and on the opposite side comes someone who seems suspicious to us due to certain body movements and other signs, we are alert. At a given moment, we are as if surprised by the conviction that we will be attacked, and the whole body prepares for defense, for attack, or for flight. The conviction, that belief, that unshakable faith, that something innate, somewhat irrational, animal, corporeal, when rationality begins, it ends, and body and mind become decision-making organs. Conviction is the companion of vanity and envy. By expelling doubt from its domains, the doors are closed to all opposition. Reasoning does not reach it. She doesn’t think, she just wonders. Transporting this narrative to the criminal process, there is also a phase in which it is necessary to put an end to uncertainty and put strength in a decision. Hence the perfection of the words of the French philosopher Paul Valéry, when he said that “conviction is the word that allows you to put, with a clear conscience, the tone of strength at the service of uncertainty”.
The concept of proof: The concept of proof is of fundamental importance. Despite their relevance, they are the most varied in doctrine and commonly the concept presented is of means of proof, not of proof ( proof is with which one seeks to demonstrate the existence of a fact = that means of proof ). Such diversity leaves us free to undertake our construction. Evidence is the indicative circumstance that a fact exists, existed or will exist. Conviction is conviction, certainty. Under these conditions, evidence is evidence or a set of evidence capable of authorizing the conviction that a fact exists, existed or will exist . There must be not only conviction, but evidence as well. Convictionwithout proof, it is only relevant to those who have it. In the case of a set of indications , they must be supported by each other, complementing and interacting with each other, that is to say, being effectively convincing. Evidence, however great the amount, if unconvincing, is not proof. Conviction needs to be authorized . Authorized by what? By the rules of experience, common sense, observation and probabilities.
Distinguishing Illicit Proof from Nullity: See this same heading in comments to article 157.
Video
Flavio Meirelles Medeiro s: In every process, the evidence is indicative.
Doctrine
Flavio Meirelles Medeiros: In criminal proceedings, conviction, evidence and evidence are different things. Conjure
Distinguishing evidence and evidence
Confusions between evidence and evidence: Evidence is the indicative circumstance that a fact exists. When he convinces by himself, he is proof too. The autopsy autopsy is evidence. As he is convincing as to the occurrence of the fact of death, he proves death. This is an example of evidence that alone constitutes proof of a fact. Normally, proof of a fact is done with a set of evidence supported by each other, some complementing and interacting with each other. The question is: is the testimony of the witness evidence or evidence? Answering: it could be one, or the other, or both. In relation to a certain fact narrated by the witness, the testimony can be used as evidence; in relation to another fact, it may serve as an indication. It depends on the verisimilitude of the testimony, on how it harmonizes with the body of evidence, with the credibility it is capable of generating. Then, have evidence in this process. No. So far, all you have are evidence. Evidence is not means of proof . Evidence is evidence with sufficient potential to generate conviction as to the existence of a given fact. It makes no sense, then, to say that evidentiary evidence is just one type of evidence. The evidentiary evidence is normally the evidence of the criminal proceedings. It is not the exception. It’s the rule. It is the main evidence of the criminal process.
Doctrine
José Francisco Cagliari: Evidence in Criminal Procedure . revistajustitia.com.br.
The process of evaluating the evidence and deciding
From rationality to conviction: The mental process of judgment is rational. In examining the evidence, there is no way around looking at the probabilities to determine whether the accused is guilty or innocent. Evidently, the judge does not make probability calculations (Newton’s binomial, statistical calculations), but the reason is based, consciously and unconsciously, on weightings involving probabilities. There will be, at the end of the process, the body of evidence (the total sum of the evidence collected), which will admit both the defensive and the accusatory thesis. It will be necessary to assess the degree of probability of these theses, considering the various signs and contraindications. In the case of conviction, the end of this judgment of probabilities is preceded by conviction., “a word that allows us to put, with a clear conscience, the tone of strength at the service of uncertainty” (Paul Valéry). In the case of acquittal, the magistrate is generally unable to convince himself of the guilt of the accused. Sometimes, but not often, his innocence is proven. The more elaborate the judge’s rational process, the longer take the rational phase of examining theses, proofs and probabilities, and the longer the conviction trigger is postponed, the better the quality of the judicial provision tends to be, because, as conviction, an act of belief, erasing rationality. When the conviction is complete, there is no more reason. These are the reasons why passionality is an undesirable trait in judges. It shortens rationality and rushes convictions. It is not without reason that desirable characteristics in judges are serenity and balance. Serenity, unlike passion, delays convictions.
Conviction is not subjective caprice: Conviction is not a subjectivity isolated from the world. To have it, there must be evidence capable of authorizing it . Conviction is not, therefore, subjectivism independent of the evaluation of the evidence context. It is conditioned to the existence of authoritative indications (authorized according to the rules of experience , common sense, observation and probabilities). Who decides which are the indications capable of authorizing the conviction is, therefore, the known subsidies of experience .
Doctrine
Alana Stefanello Gonçalves: Assessment of evidence in criminal proceedings: applicability of the standard of proof beyond a reasonable doubt in Brazilian law . Federal university of Bahia.
Andrea Galhardo Palma: Brief comparative analysis of the models for evaluating and verifying criminal evidence . tjsp.jus.br. Evidence standards – in Brazil, the USA and Italy: criticism of the rule beyond any reasonable doubt or oltre ragionevole dubbio (beyond reasonable doubt).
Aury Lopes Jr. and Alexandre Morais da Rosa: On the use of the evidentiary standard in criminal proceedings . Conjure
José Paulo Baltazar Junior: Evidential standards in criminal proceedings . bdr.synthesis.com.
Principle of real truth
Formal truth in civil proceedings: In civil proceedings, the judge, in order to decide the cases submitted to him, is normally satisfied with the evidence and manifestations produced by the parties. For the realization of civil justice, the formal truth, also called conventional, fractional, limited truth, is sufficient. As Hellwig notes, in civil proceedings, as a rule, the State leaves it up to the parties to ensure that a judgment is rendered that corresponds to the true legal situation. From this availability of the parties, it follows that the sentence may not correspond to the real truth, without any inconvenience (apud TORNAGHI, Hélio. Institutions of criminal procedure, 2nd Ed. São Paulo, Saraiva, 1977. v. I, p. 346) .
Real truth in civil proceedings: The civil judge cannot be satisfied with the truth provided by the parties when there is a public interest in the cause to be decided. If there is no public interest, the magistrate has only the right to investigate the real truth (this right can either be or not be exercised). If there is a public interest, there is a judicial obligation to investigate. Hypotheses of civil proceedings in which there is a public interest and a judicial duty to investigate the real truth are those, among others, in which there is an interest of the incapable, concerning the state of the person, paternal power, guardianship, guardianship, interdiction, marriage, declaration of absence and provisions of last will.
Real truth in criminal proceedings: In criminal proceedings, the principle of real truth prevails. It follows that there is always a public interest in the just solution of criminal disputes. Even in proceedings that have as their object the decision about a crime of private action, the public interest is present, and the judge must investigate the truth. About the real truth, also called substantial, historical, effective, objective material truth, Florian comments that the effort in its search must concern the process, must dominate it. It is a matter of public interest that delinquents be punished and the innocent acquitted based on what they are, what they have committed, what they wanted to do (FLORIAN, Eugenio. Elementos de derecho penal procedural law. Barcelona, Bosch, 1993. p. 59 ). The truth sought in criminal proceedings is that which, in Allegra’s definition, For the judgment to be correct, it is necessary that the reality of the facts conform to the idea that one has of them (apud MAYNEZ, Eduardo Garcia, Introduccion al estudio del derecho. 26. ed. México, Porrúa, 1977, v. II, p. 90). All those facts of the real world on which criminal rules may apply must be investigated in the procedural activity. The circumstances of the crime are not only investigated in order to obtain certainty as to the authorship. The agent’s background, personality, intensity or degree of guilt and the motives and consequences of the crime are also inquired, so that the amount of penalty to be applied can be determined. Even the actual financial situation of the defendant matters so that the penalty of a fine can be fixed. It is in line with the concern for truth in criminal proceedings that evidence does not have a pre-established value. The expert report, for example, does not have the power to bind the opinion of the magistrate, who may disagree with it (principle of free conviction). It is from this concern that also originates the procedural circumstance that the judge receives evidence directly from the source from which it emanates (principle of immediacy). As we have said elsewhere, the principles of free conviction and immediacy proceed from the principle of real truth. It is from this concern that also originates the procedural circumstance that the judge receives evidence directly from the source from which it emanates (principle of immediacy). As we have said elsewhere, the principles of free conviction and immediacy proceed from the principle of real truth. It is from this concern that also originates the procedural circumstance that the judge receives evidence directly from the source from which it emanates (principle of immediacy). As we have said elsewhere, the principles of free conviction and immediacy proceed from the principle of real truth.
Real truth in criminal proceedings and formal truth in civil proceedings. Confrontation: In civil proceedings, after the sentence becomes final, the decision can be reversed through rescission action, but there is a preclusive legal deadline to propose it; in criminal proceedings, no. The review action (improperly called an appeal), which, as regards the purposes, is analogous to the rescission action, can be proposed at any time, even after the convict has served the entire sentence. It is a symptom of the principle under study, which expands to surpass the limits of res judicata. Other symptoms of the validity of the principle in the criminal area, and of the satisfaction with the conventional truth in the non-criminal process, are the different consequences that the confession produces in one and another area. In that, the confession is proof of relative value, since it must be interpreted in observation of the other evidence; and in this, its value it is almost absolute ( almost , since the admission to court of facts relating to unavailable rights does not count as a confession – it is because there is public interest in them). Default implies confession in civil proceedings, which does not occur in criminal proceedings.
Formal truth in criminal proceedings: The first exception to the principle of real truth in criminal proceedings is the impossibility of prosecuting again or revising the process of the acquitted defendant in order to convict him, even in the face of new and flagrant evidence of guilt. Once the defendant is acquitted and the sentence becomes final, there is no way to reformulate it. Formal truth is yielded to for political and security reasons. Another exception is the impossibility, on appeal, of convicting a defendant acquitted in the first instance without an appeal from the prosecution. Even if, in the time between the filing and judgment, new evidence arises against the defendant, the Court cannot condemn when judging the appeal filed only by the defense. The hypothesis is remote, as it is rare for the acquitted to appeal, but it is not impossible, or rather, unfeasible.
The search for the real truth does not encourage inquisitiveness in the process
The principle of real truth does not make the process inquisitorial: The circumstance that the process is guided by the principle of truth does not make it inquisitorial, nor does it encourage inquisitorialness. And this is because the best way to get to the truth, or rather, the closest possible to the truth, is the dialectical method, that is to say, the method where two parties oppose each other, and another impartial, distant one, assists and decides . It is how the search for truth should be done in the process. The real truth is sought in accordance with the rules of the constitutional accusatory process. If the judge interferes with the investigation, his partiality is undermined, compromising the search for the truth. Aiming at the real truth does not mean giving an inquisitive configuration to the process. The inquisitive configuration goes in the opposite direction of the Federal Constitution, which ensures the accusatory process (article 129, item I, of the CF) and contradictory. When the judge becomes an inquisitor, the CF is violated and the truth is distorted. The process of seeking the truth (having its proximity as an end) also obviously means that the judge cannot judge according to knowledge that he obtained outside the case file. He must judge according to the evidence presented. The judge cannot go out through the back doors of the court to make a round in search of the truth. But that doesn’t mean the law can’t do it. And does. The examination of the corpus delicti, which is mandatory, is an example that the procedural law (and the process) seeks to reach the real truth. In conclusion: the purpose of the process is to determine whether there is sufficient evidence to prove the delinquent hypothesis described in the initial statement, and to achieve this objective: 1 – Prohibits official investigation; 2 – prohibits the decision based on extra-auto knowledge (the process seeks the real truth and the decision is based on the formal truth, the one that is assessed – giving the expressionformal truth that which Luigi Ferrajoli lends him).
Recent criticisms of the principle of real truth: In the title
Recent criticisms of the principle of real truth , in Chapter 29 of our Brief General Theory of Process, we examine the reasons why we do not agree with the idea that the search for truth transforms the judge into an inquisitor . One cannot confuse the purpose of the process (getting as close as possible to the real truth) with the method to arrive at it (inquisitive or contradictory). Seeking the truth does not imply inquisitive instruction. On the contrary. This is the diversion.
Video
Flavio Meirelles Medeiros: The criminal process still seeks the real truth.
Unreachable truth and the defender never misses the truth
Unreachable truth, evidence collection and versions: Truth is identity between the fact and the idea we have of it. The knowledge of the truth is not within the reach of men, since the facts happen outside of us, in another dimension. It is not within the reach of either men or science. The facts happen in the world of reality. Where we are not and never will be. What we know of them is a projection received through the senses, played into our consciousness and stored in our memory. This after passing through the filter of our dark unconscious moods. The projection of the fact engraved in memory, that is, the version of the fact, does not always match what actually happened in the real world. If this projection is transmitted to a third party, it will first have to be transformed into thought and then converted into words. In this process, a few half words will be missing, many others will be said too much, and still others, mistakenly. And who listens, then… A succession of errors. Errors of the senses, perception, conscience, memory, transmission of ideas, reception of ideas (see subtitleInterferences in Truth and Testimony in the title Testimony and Truth , in comments to Article 202). In the end, what remains in the criminal process is a body of evidence with which more than one thesis regarding the truth can be constructed. It is from this collection that the prosecution and defense will use, both seeking to convince the judge. Despite so many flaws, there is no other way to do justice. Process is historical reconstruction. We seek to reconstitute the past in the most reliable way possible. The truth is an impossible goal. It is not, however, impossible to try to get as close to the truth as possible. This is the true meaning of the principle of real truth, to come as close to it as possible.
The defender never misses the truth: Aristotle said: denying what is, and affirming what is not, is false, while affirming what is and denying what is not, is true . We have no way of knowing what is what is not . Accuser and defender never miss the truth in criminal proceedings, because law is science, and in science the truth is not within reach of knowledge. What exists are versions, probabilities, possibilities. Let’s take for example the case of the defender, which is traditionally more suspect to the layman, certainly because he had more intimacy with the accused. In this example, all the evidence points to the accused, who confesses to the defender, in secrecy, to be the author of the crime of which he is accused. The question is: is the defender, sustaining the thesis of innocence in court, missing the truth? We answer: he will not be. The truth is out of reach for him, not even for the accused. This one, for whatever reason, it doesn’t matter what, could be wrong. Everything is probabilities. There is an unbridgeable distance between reality and the version of reality. They are different dimensions. What the accused narrated to the defender in secrecy is just a perception of reality, it is not reality. The reality, neither he, the accused, nor anyone else reaches. He narrated what he perceived and was able to elaborate, but which does not necessarily coincide with reality. It is absolutely necessary to understand the following: There is a probability of innocence in any and all proceedings. constitutes defense’s social function to sustain this possibility of innocence. It’s because? Because the defender in the criminal process represents the interest of society in the acquittal of innocent people. It matters little whether the accused is innocent or guilty, since the function of judging is not the defense’s, it’s the judge’s. And the judge needs, and a lot, the collaboration of two equidistant parties, and preferably both effectively competent, active and capable. The better the performance of the opposing parties, the better they examine the evidence and the applicable legal theses, the better the quality of the judicial provision tends to be, since they will be providing a complete knowledge of the process by the judge. Hence the importance of the criminal defender giving the maximum of himself, sustaining the probabilities of innocence. This is the only way to prevent innocent people from being condemned.
adversarial principle
Importance: The adversarial principle is one of the most important in criminal proceedings. A manifestation of this relevance is that it is constitutional ( article 5, item LV of CF). Unlike the other principles that influence the process, it is absolute, with no exceptions. Non-compliance with the contradictory is the most frequent cause of procedural nullities. The lack of denouncement, complaint, citation, defense, deadlines for the parties, subpoenas for the knowledge of the sentences from which appeals are applicable and other omissions lead to ineffectiveness of the process due to the damage caused to the contradictory. As Couture says, “justice makes use of dialectics because the principle of contradiction is what allows, through the confrontation of opposites, to reach the truth” (COUTURE, Eduardo. Interpretation of procedural laws. São Paulo, Max Limonad, 1956. p. 66). Effectively, the thesis in the Hegelian dialectic is represented in the process by the accusation (an affirmation), the antithesis, by the defense (an opposition to the thesis) and the synthesis,
Consequences for the process: The adversarial principle has the following consequences: 1st – the party must be given the opportunity to state its reasons and to speak about those of the opposing party; 2nd – the party must be given the opportunity to speak about every element of evidence that enters the proceeding by act of the opposing party or the judge; 3rd – the party must be given the opportunity to bring evidence to the proceedings. In order for the adversarial principle to be observed, it is not necessary for the party to effectively contradict the evidence in the file and the manifestations, it is enough that it is given the opportunity to do so.
The unconstitutionality of the law: Since it was adopted by the Federal Constitution, any legal provision that goes against the principle must be considered unconstitutional; ineffective, therefore, to regulate concrete cases.
Limitations of action: But, it is clear, the contradictory acts, and absolutely, in the process and only in the process. Once the action is started, the principle takes effect. Not before. In the police inquiry, which takes place in the pre-procedural phase, there is no influence of the contradictory. There, the system adopted is the inquisitive. In conclusion, it can be said that our criminal procedure is of the adversarial type, and our criminal repressive system is of the mixed type : part inquisitive (inquiry) and part adversarial (process).
Doctrine
Cirilo Augusto Vargas. The “dynamic” perspective of the adversarial principle . Anadep.
Jorge Emanuel Mendes Valente Dias : Considerations on Evidence and Adversary in the Instruction Phase of Criminal Procedure . Portuguese University.
Jurisprudence
The full transcription of the intercepted conversations is not necessary, provided that full access is allowed to the investigated person: The full transcription of the intercepted conversations is not necessary, provided that the investigated person is given full access to all captured conversations, as well as the entirety of the material is made available that, directly and indirectly, refer to that, without prejudice to the magistrate’s power to determine the transcription of all or parts of the audio ( Inq 3.693/PA, rel. min. Cármen Lúcia, judged on 4/10/2014, judgment published in the DJE of 10-30-2014 – Newsletter 742, Plenary).
Partial transcription of interceptions may be carried out provided that access to the entirety of the content is ensured: It is legitimate to transcribe telephone interceptions only of the parts that are relevant to the facts narrated in the complaint, without prejudice to wide access to the entirety of the electronic media or the records interested parties ( HC 109.708, rel. Min. Teori Zavascki, judgment on 23-6-2015, judgment published in the DJE of 3-8-2015 – Newsletter 791, Second Panel).
principle of free conviction
legal proof: There are basically two regulatory systems for the judicial evaluation of evidence: the system of legal evidence and that of free conviction. By the principle of legal evidence, whose study, today, has become the competence of the history of law, the evidence is evaluated by the judge according to criteria pre-established by law. With it, the evidence has a hierarchical value. Torture, since antiquity, has been used for various purposes. It was used by the ancients and, in medieval times, by the Inquisition. By the Persians, however, it was used as an accessory penalty, since, as Thoth verifies, they “used torture only against those sentenced to death; so that it was not in order to extract their confession, but only to cause them torment, before the death penalty was carried out” (THOT, Ladislao – Historia de las antiguas intituiciones de derecho penal. Buenos Aires, Talleres Graficos Argentinos. LJ Rosso. sd, p. 248). Torture, in addition to being a means of obtaining a confession that was considered legal evidence, was itself an instrument for obtaining evidence. As the historian Thoth narrates, in Roman law, the general principle accepted was that the confession or declaration of a slave, in the character of accused or witness, without distinction, could not have legal value, except in the case of having it done under the action of torture. In his conclusions to the historical study of torture, Thoth points out that its legal foundation was the principle professed by ancient judges, jurists and legislators, that no one could be condemned to the death penalty without having confessed the commission of the crime and the respective guilt ( THOT, Ladislao. 248). Torture, in addition to being a means of obtaining a confession that was considered legal evidence, was itself an instrument for obtaining evidence. As the historian Thoth narrates, in Roman law, the general principle accepted was that the confession or declaration of a slave, in the character of accused or witness, without distinction, could not have legal value, except in the case of having it done under the action of torture. In his conclusions to the historical study of torture, Thoth points out that its legal foundation was the principle professed by ancient judges, jurists and legislators, that no one could be condemned to the death penalty without having confessed the commission of the crime and the respective guilt ( THOT, Ladislao. 248). Torture, in addition to being a means of obtaining a confession that was considered legal evidence, was itself an instrument for obtaining evidence. As the historian Thoth narrates, in Roman law, the general principle accepted was that the confession or declaration of a slave, in the character of accused or witness, without distinction, could not have legal value, except in the case of having it done under the action of torture. In his conclusions to the historical study of torture, Thoth points out that its legal foundation was the principle professed by ancient judges, jurists and legislators, that no one could be condemned to the death penalty without having confessed the commission of the crime and the respective guilt ( THOT, Ladislao. it itself was once an instrument for obtaining evidence. As the historian Thoth narrates, in Roman law, the general principle accepted was that the confession or declaration of a slave, in the character of accused or witness, without distinction, could not have legal value, except in the case of having it done under the action of torture. In his conclusions to the historical study of torture, Thoth points out that its legal foundation was the principle professed by ancient judges, jurists and legislators, that no one could be condemned to the death penalty without having confessed the commission of the crime and the respective guilt ( THOT, Ladislao. it itself was once an instrument for obtaining evidence. As the historian Thoth narrates, in Roman law, the general principle accepted was that the confession or declaration of a slave, in the character of accused or witness, without distinction, could not have legal value, except in the case of having it done under the action of torture. In his conclusions to the historical study of torture, Thoth points out that its legal foundation was the principle professed by ancient judges, jurists and legislators, that no one could be condemned to the death penalty without having confessed the commission of the crime and the respective guilt ( THOT, Ladislao. it could not have legal value, unless it had been done under torture. In his conclusions to the historical study of torture, Thoth points out that its legal foundation was the principle professed by ancient judges, jurists and legislators, that no one could be condemned to the death penalty without having confessed the commission of the crime and the respective guilt ( THOT, Ladislao. it could not have legal value, unless it had been done under torture. In his conclusions to the historical study of torture, Thoth points out that its legal foundation was the principle professed by ancient judges, jurists and legislators, that no one could be condemned to the death penalty without having confessed the commission of the crime and the respective guilt ( THOT, Ladislao. work cit. p. 272).
Free motivated conviction: The French Revolution represents a landmark that separates, in history, the principle of free conviction from the principle of legal proof. While in the system of legal evidence the magistrate evaluated the evidence by legal criteria, in that of free conviction he assesses the value of evidence through a critical-rational process, aided by logical rules and lessons from experience. The principle of evaluation of the evidence adopted is that of free conviction (there is no pre-established hierarchy of means of proof) motivated (the judge must state the reasons for his conviction). It is different from the system of intimate conviction, which applies to jurors, who do not need to state the reasons for their decision. Free conviction is not exactly free. It’s a technical term. Arises to oppose the system of legal proof. It does not mean that the judge, when examining the evidence, may convince himself freely as he pleases. Nor does it have the meaning that the judge can go out, on his own, in search of evidence. It does mean that the judge is not subject to pre-established amounts of evidence. Free conviction is motivated. Consequently, it must be based on proof. Evidence is the set of evidence that authorizes the conviction as to the existence of a certain fact. As the conviction needs to be authorized (by the teachings of experience and rules of probability), the freedom of appreciation of the proof is not total, it is subjugated to the rules of experience and probability. In our system, the judge is not, at the time of evaluating the evidence, bound to that number of norms that, in past times, regulated this phase. A very clear symptom of this freedom of subjective judgment, in Brazilian law,
Limits to free belief: Free conviction, if taken to its extremes, would make us return to that system called intimate conviction, according to which the magistrate decides based on his conscience, without the duty to base the decision on any other element that is not his particular criterion. Such a system is not adequate, since, as Manzini says, the only legitimate source of conviction must derive from the facts examined and declared in the records, and not just from psychological (internal) elements of the judge, disconnected from these same facts (apud MARICONDE, Alfredo Velez. Studios of penal procedural law. Córdoba, Imprenta de la Universidad, 1956, tome II, p. 91). Limiting the judge’s freedom in evaluating the evidence are the principles of ample defense, the contradictory and the obligation to state reasons for decisions. These principles constrain free conviction, to put it in its place. It is as a result of them that the judge decides freely, but based on the evidence contained in the file – what is not in the records is not in the world. The judge cannot form his conviction inspired by facts that he became aware of extra-procedurally. Only the element of evidence that the parties have been given the opportunity to contradict lends itself to forming the judge’s conviction. Thus, the elements contained in the police investigation do not serve to convince the judge, if the parties are not given the possibility of contradicting them in the judicial phase. The testimonies and other elements contained in the inquisitive records, while not being contradicted, are only intended to provide subsidies to initiate the procedural accusatory activity; they are nothing more than informational elements necessary for the promotion of criminal action. Although the judge is free to evaluate the evidence, he must clarify the reasons for reaching a certain decision. How could the party with an interest in reforming the decision motivate its appeal without knowing the reasons that led to that decision? Sometimes I might presume them; others, I could try to guess them, but there would never cease to be damage to the integrity of the contradictory (in the appeal, when the party makes a critical assessment of the judge’s reasons, there is contradiction) and the broad constitutional defense.
Untying of the records and need for motivation: In our procedural legal system, the limits imposed on the principle of free conviction by the obligation to state reasons for the decision and by the requirement to do so based on the elements of conviction contained in the case file do not exist only in the trial by jury. There, the juror can, never expressing the reasons for his conviction, judge considering elements foreign to the file, such as, for example, the personal aspects of the accused, and even decide against the evidence. What the jury cannot do is decide manifestly against the evidence in the file. However, if in the same case submitted to its competence it is decided twice, nothing can be done. The decision in clear contradiction with the evidence prevails and cannot be revoked. This circumstance is expressly provided in the CPP.
Exceptions to the principle of free conviction: There are two exceptions to the principle of free conviction adopted. The first is that the appeal judge cannot sentence if the accused was acquitted by the lower court without an appeal by the prosecution. In this case, no matter how serene the conviction of the appealed judge as to the defendant’s guilt, he will not be able to issue a condemnatory decree. It is the prohibition of reformatio in pejus, which constitutes an exception not only to free conviction, but also to the principle of real truth. Another exception concerns the examination of the corpus delicti. There can be no conviction without an examination of the corpus delicti in infractions that leave direct or indirect traces. Here, in our process, a remnant of the regime of legal evidence can be verified, which, in our opinion, must be preserved.
Doctrine
Regina Lúcia Teixeira Mendes da Fonseca: Dilemmas of the judicial decision. The representations of Brazilian judges on the principle of motivated free conviction . Gama Filho University.
Uadi Lammêgo Bulos: Free Persuasion of the Judge and the Constitutional Guarantees of Criminal Procedure . core.ac.uk.
Jurisprudence
Limits to the grounds per relationem: The judgment that limits itself to ratifying the judgment and adopting the ministerial opinion, without even transcribing them, is null and void, failing to rule out defensive theses or to present its own grounds ( STJ, HC 214.049-SP, Rapporteur from Justice Nefi Cordeiro, Reporter for judgment of Justice Maria Thereza de Assis Moura, judged on 2/5/2015, DJe 3/10/2015 – Newsletter 557 ).
Grounds launched in the manifestation of the Public Ministry adopted as reasons for deciding. Possibility: Does not characterize an offense to art. 93, IX, of the Federal Constitution, act in which the grounds laid down in the statement by the Public Ministry are adopted as reasons for deciding ( HC 128.102, rel. min. Marco Aurélio, judgment on 12-9-2015, decision pending publication – Informativo 811 , First Class).
The testimony given by police officers involved in investigative action or those responsible for arrest in flagrante delicto is valid and covered with probative efficacy, when it is in harmony with the other evidence in the file and is collected under the scrutiny of the contradictory and ample defense. Source: Jurisprudence in theses (STJ).
Judgments:
HC 418529/SP, Rel. Minister Nefi Cordeiro, judged on 04/17/2018, DJE 04/27/2018
HC 434544/RJ, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 03/15/2018, DJE 04/03/2018
HC 436168/RJ, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 03/22/2018, DJE 04/02/2018
AgRg no AREsp 1205027/RN, Rel. Minister Felix Fischer, Fifth Panel, judged on 03/13/2018, DJE 03/21/2018
AgRg in AREsp 1204990/MG, Rel. Minister Sebastião Reis Júnior, judged on 03/01/2018, DJE 03/12/2018
EDcl in AgRg in AREsp 1148457/ES, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 02/06/2018, DJE 02/23/2018
For criminal purposes, recognition of the defendant’s minority requires proof by a competent document. (Precedent n. 74/STJ). Source: Jurisprudence in theses (STJ).
Judgments:
AgRg no HC 357617/MG, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 04/10/2018, DJE 04/17/2018
HC 425079/MG, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 03/15/2018, DJE 04/03/2018
AgRg in AREsp 822351/MG, Rel. Minister Nefi Cordeiro, judged on 03/20/2018, DJE 04/02/2018
AgRg no HC 409100/SC, Rel. Minister Felix Fischer, Fifth Panel, judged on 03/13/2018, DJE 03/20/2018
HC 429600/MG, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 02/06/2018, DJE 02/16/2018
AgRg in AREsp 1109808/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 02/06/2018, DJE 02/16/2018
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
For criminal purposes, recognition of the defendant’s minority requires proof by a competent document. (Precedent n. 74/STJ). Source: Jurisprudence in theses (STJ).
Judgments:
AgRg no HC 357617/MG, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 04/10/2018, DJE 04/17/2018
HC 425079/MG, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 03/15/2018, DJE 04/03/2018
AgRg in AREsp 822351/MG, Rel. Minister Nefi Cordeiro, judged on 03/20/2018, DJE 04/02/2018
AgRg no HC 409100/SC, Rel. Minister Felix Fischer, Fifth Panel, judged on 03/13/2018, DJE 03/20/2018
HC 429600/MG, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 02/06/2018, DJE 02/16/2018
AgRg in AREsp 1109808/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 02/06/2018, DJE 02/16/2018
Principle in dubio pro reo
Constitutional basis: The principle in dubio pro reo originates from the principle of the presumption of innocence contained in article 5, item LVII of the CF, according to which “no one will be considered guilty until the final and unappealable sentence of a criminal conviction”. It is an ironclad clause. It can only be interpreted strictly. It cannot be the subject of a Proposed Amendment (PEC). The prohibition of the acknowledgment of guilt before imprisonment (stated in article 5 of the CF among the fundamental rights and guarantees) is an ironclad clause, given that article 60, paragraph 4, item IV, prohibited the object of deliberation on the amendment tending to abolish individual rights and guarantees. Being a stony clause, there is no way to relativize its value.
Presumption of innocence: Regarding the presumption of innocence, see Chapter 50 of our Brief General Theory of Criminal Procedure . More topics on the presumption of innocence can be found in our comments on Article 283 .
Substantial and procedural facts: In decision-making acts, the magistrate decides with the material contained in the case file. The records contain representation of facts. Some facts are of interest for the application of the criminal procedural norm and others for the application of the substantive norm. The fact of prejudice in nullities is of relevance to the rule of procedure. The facts related to authorship, personality, background of the agent and the hypothesis itself, which is the object of the accusation, are of substantial relevance, as they are linked to criminal law.
Certainty and doubt: Certainty and doubt are psychological states. The judge possesses certainty when he acquires the conviction that the fact he mentally represents matches what actually happened. There is doubt when this conviction is lacking, that is, when the judge is unable to determine which of the hypotheses in fact admitted by him as possible matches the fact that actually occurred. Doubt is not, as it is usually conceptualized, mere absence of conviction. Doubt can be absent, but there is no conviction. On the correct conception of doubt, see comments on article 413 , under the title Pronunciation and in dubio pro societate .
Burden of proof systems: For the magistrate to decide in the process, he must know the evidence. In civil proceedings, the burden of proof system prevails. There, the burden of proving the facts is shared between the parties. The author must prove the constitutive facts of his right, and the defendant will be responsible for proving the impeding, modifying or extinguishing facts of the author’s right.
Ineffectiveness of the onus system in criminal proceedings: In criminal proceedings, the magistrate does not judge according to the rules for distribution of evidence established in the civil area. According to Mariconde, “the principle in dubio pro reo absolutely excludes the probative burden of the accused; the latter does not have the duty to prove anything, although he has the right to do so, as he enjoys a legal situation that does not need to be constructed, but destroyed; if his guilt is not proved, he will remain innocent and, consequently, he must be acquitted” (MARICONDE, Alfredo Vélez. Estúdios de derecho penal procesal. Córdoba, Imprenta de la Universidad, 1956, V.II, p. 34). In the same sense, Manzini says that “the negative proof, the demonstration of inculpability, in general, is not possible: claiming it would mean a logical absurdity and a manifest iniquity…” ( apudMARICONDE, Alfredo Velez. Studies of criminal procedure law. Córdoba, University Press, 1956, V.II, p. 3. 4).
Application of the principle in criminal proceedings: In criminal proceedings, the judge judges according to his conviction, resulting from the evidence brought to the proceedings by the parties or ex officio. Sometimes, the evidence available to decide about a certain event is not clear enough, and then the psychological state of doubt emerges. If, after exhausting all the legal means to exclude the possibilities that generate the doubt and, nevertheless, it persists, the solution that presents itself is the application of the principle in dubio pro reo .
Facts to which it applies: It should be noted that the principle does not apply only to facts covered by criminal law (the occurrence of a typical fact, authorship, self-defense, for example, are facts whose incidence is affected by criminal law), all facts of relevance to criminal justice, whether substantive or procedural, are subject to application of the principle. An example of a fact on which the criminal procedural law focuses (fact of procedural relevance) and on which the principle is applicable, as we have already said, is the element of prejudice necessary for the declaration of procedural nullity. When, in that subjective moment in which the judge judges about the declarability or not of the nullity of the procedural act, doubts occur to him as to the existence of real damage, he will be facing the so-called potential, doubtful, possible damage. He opposes the actual damage, one that is materially and effectively verified. Borges da Rosa vehemently defends the impossibility of declaring nullity, when the damage is potential: “the writers who maintain that damage or potential damage, which is nothing more than a presumption of damage or loss, also gives rise to nullity, are those who have not yet completely freed themselves from the powerful influence exerted by the already relegated system of Romagnosi…” (apud MEDEIROS, Flavio Meirelles – Nullities of criminal procedure. Porto Alegre, Synthesis, 1982. p. 37). The eminent writer from Rio Grande do Sul is not right. It turns out that nullity is, by definition, an omission. Because it is an omission (of an act or formality), it is often difficult to state that there was no damage. Only if it were possible to compare the performed act with the non-performed act. However, this is legally unfeasible. This infeasibility leaves in doubt as to the existence of damage. Considering that the verification of damage concerns the assessment of evidence, and that the principle in dubio pro reo is also applicable to facts of a procedural nature, it must be applied when the nullity of doubtful damage is favorable to the defense.
Significance and foundation: The principle in dubio pro reo means that, if the judge is in doubt, therefore not being able to convince himself that the fact occurred, or is in a certain way, to the exclusion of another, he must decide that has occurred, or is in the form that appears most favorable to the defendant. Its foundation is in the very ultimate ends of criminal justice: the peace and security of citizens. The application of the principle gives everyone the assurance that they will never be convicted without sufficient proof, and brings peace of mind as a result.
Doctrine
Lenio Luiz Streck : The case of sheep-eaters and the burden of proof . Conjure
Principle that the accused is not obliged to produce evidence against himself
Nemo tenetur se detegere: It means that the accused is not obliged to produce evidence against him. Article 5, item LXIII of the CF provides that the prisoner will be informed of his rights, including the right to remain silent, being assured the assistance of his family and a lawyer. The Pact of San José, Costa Rica , enacted by Decree n. 678/1992, in article 8, letter “g” of the Annex, establishes as a minimum guarantee of the accused the right not to be obliged to testify against himself, nor to plead guilty. Nemo tenetur se detegere includes the right to remain silent, not to give up your body, part of your body, substances of your body for the production of evidence. Much more, the accused is under no obligation to cooperate, just as the prosecution does not usually demonstrate cooperation with the defense in criminal proceedings.
Doctrine
Ana Rita dos Santos Correia: No one is bound to accuse himself of the obligation to deliver documents . repository.ul.pt 2015
Aury Lopes Jr. and Pedro Zucchetti Filho: The right of the accused not to attend the personal recognition . Conjure
Leonor Cacaes Palácios da Silva : Obtaining evidence on smartphones protected through biometrics (fingerprints) and numeric passwords and the principle of non-self-incrimination . Law School. University of Lisbon.
Jurisprudence
principle of immediacy
Meaning: Evidence can be received immediately or immediately. Eberhard Schmidt, with examples, makes these two ways of receiving evidence clear: in the case where an offensive expression must be proved, anyone who has heard this manifestation can be questioned as a witness, thus receiving the evidence immediately. ; if, on the other hand, a person is questioned who has been informed of the offense by someone who has witnessed it, we are faced with a mediate reception of the evidence (SCHMIDT, Eberhard, Los fundas Históricos y constitucionales del derecho procesal penal. Buenos Aires, Bibliográfica Argentina, 1957, p. 262). It is known that joke in which one person whispers a sentence to another, and this, in turn, to a third, and so on, until the last one declares what he heard to, then, comparing with the first sentence, there is a huge lack of conformity. It is to avoid damage to the truth, which can occur with the interposition of a third party between the judge and the evidence, that the principle of immediacy is in force in the process. This principle means that the judge receives the evidence directly from its origin.
Symptoms: Among us, it is as a result of the principle of immediacy that, between hearing the witness in person and the one who knows the facts through third parties, the judge prefers the former. This principle also results in the magistrate’s duty to question the accused who appears in court, who, in turn, cannot give power of attorney to another for the act; that is to say, who interrogates is the judge and only the judge, and who is interrogated is the defendant and only the defendant. There is also a judicial duty, whenever possible, to question the offended party. Another manifestation of the principle is in article 11 of the Code of Criminal Procedure, which determines that the instruments of the crime, as well as the objects that are of interest to the evidence, must be sent to court together with the investigation records.
Exceptions: As Schmidt points out, the full realization of the principle of immediacy would lead to such a wide decrease in the possibilities of proof that the administration of criminal justice would become impossible (SCHMIDT, Eberhard, Los fundamentos et constitucionales del derecho procesal penal. Buenos Aires. , Bibliográfica Argentina, 1957, p. 263). The presence of the interpreter between the witness (or the document) and the judge; that of the expert between the examined object and the judge; photographs and recordings between the fact and the fact represented and the judge are exceptions to the principle of immediacy. Carnelutti goes further, even considering the presence of a lawyer placed between the accused and the judge as an exception to the principle of immediacy (CARNELUTTI, Francisco – Estudios de derecho procesal. Buenos Aires, Ediciones Juridicas Europa-America. 1952, v. I, p. 114).
