Art. 158. When the infraction leaves traces, the examination of the body of the crime, direct or indirect, will be indispensable, and the confession of the accused cannot replace it.
Single paragraph. Priority will be given to carrying out the forensic examination when dealing with a crime involving: (Included given by Law No. 13,721, of 2018)
I – domestic and family violence against women; (Included given by Law No. 13,721 of 2018)
II – violence against children, adolescents, elderly people or people with disabilities. (Included given by Law No. 13,721, of 2018)
Traces and purpose of the exam
Offense that leaves traces : Some criminal offenses leave traces (bodily injuries, for example). Others do not (slander given orally and not recorded by any recording method). When it leaves traces, the corpus delicti examination, direct or indirect, is essential, and the confession of the accused does not make up for the lack. The corpus delicti examination is a skill. Other expertise may be carried out during the investigation or in the course of the process. But the examination of the corpus delicti is mandatory, as it aims to prove the materiality of the crime. Its importance is such that its absence means nullity of the process ( article 564, item III, letter “b” ).
Traces : Traces are synonymous with footprints, clues, traces, remains, indications, signs. They mainly concern materiality. But not just her. Being related to the investigated fact, it is trace.
Purpose of the corpus delicti examination: The main purpose of the corpus delicti examination is to prove the occurrence of the fact considered to be criminal.
Obligations of the police authority: Article 6 , and its items I, II and VII, provides that “as soon as it becomes aware of the commission of the criminal offense, the police authority must go to the location, ensuring that the state and conditions are not altered. conservation of things, until the arrival of criminal experts; – seize the objects that are related to the fact, after being released by the criminal experts; – determine, if applicable, that a forensic examination and any other expertise be carried out”.
Doctrine
The Art of Digital Forensics. Interview of the Director of Data Security to the Olhar Digital Program.
Rodrigo Alves Carvalho: Methodology for interception of encrypted data applied in criminal investigations . University of Brasilia.
Jurisprudence
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
indirect exam
Examination of the indirect corpus delicti: There is a current doctrine according to which the examination of the indirect corpus delicti can be carried out by means of safe and convincing testimonial evidence as to the materiality of the crime. This current has been accepted by jurisprudence. It is from the wording of article 167: “If it is not possible to examine the body of the crime, because the traces have disappeared, the testimonial evidence will be able to make up for the lack”. According to another current, the indirect examination must be carried out by the expert (or experts, if not official) examining testimonies, documents, photographs, films, certificates, bulletins. Both currents are correct. It is up to the judge to determine which examination is most appropriate, which is available, in view of the specific case. As well noted by Marco Antonio Marques da Silva and Jayme Walmer de Freitas, in the Code of Criminal Procedure Commented, “rape can be proven by the eye of a witness who witnesses carnal intercourse through the use of violence or serious threat, dispensing with the report . The conclusion will always be different in environmental crimes, when part or all traces of the infraction have disappeared. Code of Criminal Procedure Commented . Editora Saraiva: 2012).
Inadmissibility of the examination of the indirect corpus delicti: It is inadmissible to examine the indirect corpus delicti if the traces have not disappeared, or if they are lost due to negligence of the police authority.
Jurisprudence
The incidence of the obstacle disruption qualifier, provided for in article 155, paragraph 4, I, of the Penal Code, is conditioned to proof by expert report, except in case of disappearance of traces, when the testimonial evidence, the confession of the accused or the examination indirect may supply the lack. Source: Jurisprudence in theses (STJ). Source: Jurisprudence in theses (STJ).
Judgments:
AgRg no REsp 1699758/MS, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 04/05/2018, DJE 04/11/2018
AgRg in REsp 1636987/SC, Rel. Minister Antonio Saldanha Palheiro, judged on 12/12/2017, DJE 04/05/2018
AgRg in REsp 1705450/RO, Rel. Minister Nefi Cordeiro, judged on 03/13/2018, DJE 03/26/2018
AgRg in AREsp 1134043/RS, Rel. Minister Felix Fischer, Fifth Panel, judged on 11/23/2017, DJE 12/01/2017
HC 420597/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 11/21/2017, DJE 11/28/2017
HC 415848/SC, Rel. Minister Maria Thereza de Assis Moura, judged on 11/07/2017, DJE 11/21/2017
It is necessary to carry out the forensic examination to prove the materiality of the crime when the conduct leaves traces, however, the expert report will be replaced by other evidence in the event that the evidence has disappeared or the place has become inappropriate or even when the circumstances of the crime do not allow for technical analysis. Source: Jurisprudence in theses (STJ).
Judgments:
AgRg in REsp 1726667/RS, Rel. Minister Jorge Mussi, Fifth Panel, judged on 08/23/2018, DJE 08/31/2018
HC 440501/RS, Rel. Minister Felix Fischer, Fifth Panel, judged on 05/24/2018, DJE 06/01/2018
AgRg on REsp 1722389/MS, Rel. Justice Sebastião Reis Júnior, Sixth Panel, judged on 04/10/2018, DJE 04/16/2018
AgRg in REsp 1300606/DF, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 03/07/2017, DJE 03/14/2017
HC 360603/PR, Rel. Justice Joel Ilan Paciornik, Fifth Panel, judged on 02/21/2017, DJE 03/06/2017
AgRg in HC 371211/MS, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 11/22/2016, DJE 12/02/2016
The definitive toxicological report is essential for the configuration of the crime of illicit drug trafficking, under penalty of having the materiality of the crime as uncertain and, therefore, giving rise to the acquittal of the accused. Source: Jurisprudence in theses (STJ).
Judgments:
AgRg in REsp 1719958/GO, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 08/23/2018, DJE 09/03/2018
HC 394346/RJ, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 08/23/2018, DJE 08/29/2018
AgRg in AREsp 984996/SP, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 05/15/2018, DJE 05/29/2018
PExt no HC 399159/SP, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 05/08/2018, DJE 05/16/2018
HC 414992/RJ, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 04/17/2018, DJE 05/02/2018
AgInt no REsp 1690890/MG, Rel. Minister Felix Fischer, Fifth Panel, judged on 02/27/2018, DJE 03/07/2018
It is possible, in exceptional situations, to prove the materiality of the crime of drug trafficking through the provisional finding report, provided that it is endowed with the same certainty as the definitive report and that it has been prepared by an official expert, in procedure and with equivalent conclusions. Source: Jurisprudence in theses (STJ).
Judgments:
AgRg in REsp 1719958/GO, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 08/23/2018, DJE 09/03/2018
HC 394346/RJ, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 08/23/2018, DJE 08/29/2018
AgRg in AREsp 1092574/RJ, Rel. Minister Jorge Mussi, Fifth Panel, judged on 06/07/2018, DJE 06/15/2018
PExt no HC 399159/SP, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 05/08/2018, DJE 05/16/2018
AgRg in REsp 1695856/MG, Rel. Minister Antonio Saldanha Palheiro, Sixth Panel, judged on 04/19/2018, DJE 04/30/2018
AgRg in REsp 1567581/MG, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 03/22/2018, DJE 04/03/2018
The apprehension and expertise of a firearm is indispensable for the characterization of the cause of the increase in the sentence provided for in article 157, § 2º-A, I, of the Penal Code, when its use is evidenced by other means of proof. Source: Jurisprudence in theses (STJ).
Judgments:
AgRg in AREsp 1286741/PI, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 06/26/2018, DJE 08/02/2018
AgRg no AREsp 1284510/MS, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 06/21/2018, DJE 08/01/2018
HC 444719/SP, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 06/26/2018, DJE 08/01/2018
HC 428617/SP, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 06/26/2018, DJE 08/01/2018
HC 449697/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 06/21/2018, DJE 06/28/2018
AgRg on REsp 1712795/AM, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 06/05/2018, DJE 06/12/2018
Confession does not supply
Confession: Isolated, it does not make up for the absence of a forensic examination. However, if confirmed by witnesses and other pieces of evidence, it may supplement the examination, but only in the event that the traces have disappeared (and that the police have not neglected).
Absence of examination and nullity
Nullity of the process: According to article 564, item III, letter “b” , the process is null due to the lack of examination of the forensic evidence, except if the traces have disappeared, when then, according to article 167, the testimonial evidence may make up for the lack. Failure to examine the corpus delicti, if the traces have not disappeared, or have disappeared, and the lack of examination has not been made up by testimonial evidence, constitutes absolute nullity. The recognition of this nullity is independent of the party’s argument, and the damage is presumed by law. The absence of a requirement for the existence of the forensic examination is also of absolute nullity, such as, for example, the absence of a description of what was examined and of the answers to the formulated questions. See notes to article 564.
Presentation of the complaint without examination of the corpus delicti: The jurisprudence understands that it is possible, and that the examination can be added to the file at a later time. The reason is that these exams are often delayed. If aspects of the defense are related to questions that must be detailed in the exam, there may be nullity and, thus, the defense must argue it during the previous defense, not allowing, in this way, that there is estoppel. With the late arrival of the examination to the records, the parties must be seen. It may even be the case to reopen the deadline for the defense to request evidence.
Exemption from examination in special criminal courts: According to article 77, paragraph 1, of Law 9.099/95 , “for the filing of the complaint, which will be prepared based on the term of occurrence referred to in article 69 of this Law, with waiver of the police inquiry, the examination of the forensic body will be waived when the materiality of the crime is verified by medical report or equivalent evidence”.
Law on Drugs ( Law 11.343/2006 ): In its article 50, paragraph 1 , the law on drugs establishes that “for the purpose of drawing up the arrest warrant in flagrante delicto and establishing the materiality of the crime, the report confirming the nature of the offense is sufficient. and quantity of the drug, signed by an official expert or, in the absence of one, by a suitable person ”.
Doctrine
Edilson Mougenot Bonfim: Misunderstanding the Law Can Bring Impunity . Conjure “ (…) Let it be clear: corpus delicti is not the “body” victimized by the crime or “the body of the victim”. Being proof of the existence of the crime, when impossible to be done directly (with a corpse), the CPP was careful to accept it indirectly, this because, there can be homicide without a corpse (execution using acid, drowning at high sea, use of explosives, use of fire until cremation and disappearance of ashes, etc.)”
Jurisprudence
Breathalyzer test and absence of obligation to incriminate oneself Topic 446: The individual cannot be compelled to collaborate with the aforementioned ‘breathalyzer’ or blood test tests, in respect of the principle according to which no one is obliged to self-incriminate (not even tenetur se detegere) ( Resp 1111566/DF – year 2009 – Justice Marco Aurélio Bellizze ).
Drunk driving. Typicality and proof. Theme/Repetitive 447: The criminal type of art. 306 of the Brazilian Traffic Code is formed, among others, by an objective element, of an exact nature, which does not allow the application of subjective interpretation criteria, that is, the index of 6 decigrams of alcohol per liter of blood. The degree of drunkenness is elementary and objective of the type, not constituting the typical conduct to carry out the activity in any other concentration lower than that determined by law, emanated from the National Congress. The regulatory decree, being able to list any means of proof that it considered suitable for the typicality of the conduct, dealt specifically with 2 (two) exams by technical and scientific methods that could be carried out in devices approved by CONTRAN, namely, the blood test and the breathalyzer (Resp 1111566 – Rapporteur Marco Aurélio Bellizze – STJ – 2012 ).
Proof of the materiality of the crime of copyright infringement referred to in § 2 of art. 184 of the CP: To prove the commission of the crime of violation of copyright referred to in § 2 of art. 184 of the CP, it is unnecessary to identify the producers of the original media in the report resulting from the expertise carried out on the seized counterfeit objects, and it is also unnecessary to question the alleged victims so that they confirm any infringement of their copyright (HC 191.568- SP, Justice Jorge Mussi, judged on 2/7/2013 – Newsletter No. 0515 ).
Demonstration of the materiality of the crime provided for in art. 7, IX, of Law 8.137/1990: For the demonstration of the materiality of the crime provided for in art. 7, IX, of Law 8.137/1990, it is essential to carry out an expert examination to certify whether the goods seized were in improper conditions for consumption (AgRg in Resp 1.111.736-RS, Reporting Minister Marco Aurélio Bellizze, judged on 17 /12/2013 – Newsletter No. 533).
No need for bodily injuries to characterize the crime of attempted robbery: Recognizing the existence of irregularities in the expert report that attests to the nature of the injuries suffered by the victim of attempted robbery (157, § 3, final part, of the CP) does not results in the disqualification of the conduct for any of the other types of theft provided for in art. 157 of the CP ( HC 201.175-MS, Justice Jorge Mussi, judged on 4/23/2013 – Bulletin No. 0521 ).
No need for expert evidence for conviction for using a false document: Conviction for violating the provisions of art. 304 of the CP (use of false document) based on documents and testimonies contained in the process, accompanied by the confession of the accused, being unnecessary the expert evidence to prove the materiality of the crime, especially if the defense did not request, in the opportune moment, the carrying out the said examination (STJ, HC 307.586-SE, Reporting Minister Walter de Almeida Guilherme – Judge summoned from the TJ/SP -, judged on 11/25/2014, DJe 12/3/2014 – Newsletter 553).
Community radio. Radiated power above the safety limit. Indispensability of expertise: The absence of expert evidence that verifies, in loco, that the community radio operates with effective radiated power above the safety limit prevents the receipt of the complaint, for lack of just cause ( RHC 119.123/MG, rel. min. Cármen Lúcia, judged on 3/11/2014, judgment published in the DJE of 8/4/2014 – Newsletter 738, Second Panel).
Validity of the expert report based on the external characteristics of the seized object: When verifying the criminal materiality of the crime of copyright infringement (art. 184, § 2, of the CP), an expert examination based on the external characteristics of the material is allowed seized, it is not necessary to catalog the CDs and DVDs, as well as the indication of each title and author of the seized and falsified work (AgRg in AREsp 276.128-MG, Reporting Justice Walter de Almeida Guilherme (Called Justice of the TJ/SP) , judged on 2/10/2014 – Newsletter No. 549).
Need for expertise to demonstrate that the goods are unfit for consumption in a crime against the consumption relationship: To characterize the offense provided for in art. 7, IX, of Law 8.137/1990 (crime against consumption relationship), it is essential to carry out an expert examination in order to certify whether the seized goods are in improper conditions for consumption, not being sufficient to prove the materiality of the crime, infraction notice informing the non-existence of registration of the State Inspection Service (SIE) in the goods displayed for sale (art. 18, § 6, II, of the CDC, with state decree that conceptualizes the requirements of the property for the consumption of food and beverages for marketing purposes) ( STJ, RHC 49.752- SC, Judge Jorge Mussi, judged on 4/14/2015, DJe 4/22/2015 – Newsletter 560).
Sampling inspection. Repetitive theme 926: It is enough, for the proof of the materiality of the offense foreseen in art. 184, § 2, of the Penal Code, the expertise carried out, by sampling, on the external aspects of the seized material, being unnecessary the identification of the holders of the violated copyrights or who represents them ( REsp 1456239 MG, Reporting Minister ROGERIO SCHIETTI CRUZ , THIRD SECTION, judged on 08/12/2015, DJe 08/21/2015 ).
Incident of insanity and defense opposition: It is not possible to compulsorily determine the incident of mental insanity in the event that the defense opposes its realization ( HC 133.078, rel. min. Cármen Lúcia, judgment on 9-6-2016, DJE de 22-9-2016 – Bulletin 838, Second Panel).
Environmental crime that does not require expert evidence. Product listed in Resolution n. 420/2004 of ANTT.: Transport of toxic, harmful or dangerous products. Art. 56, caput, of Law no. 9,605/1998. ANTT Resolution n. 420/2004. Abstract danger crime. Expertise. Dispensability. The crime provided for in art. 56, caput of Law n. 9,605/1998 is of abstract danger, and the production of expert evidence to attest to the harmfulness or dangerousness of transported products is unnecessary, provided that they are listed in Resolution n. 420/2004 of ANTT. ( REsp 1.439.150-RS, Reporting Justice Rogério Schietti Cruz, unanimously, judged on 10/05/2017, DJe 10/16/2017 – Newsletter 613 ).
Crime caused by the police and lack of need for a corpus delicti examination: The offense provided for in the first part of article 54 of Law n. 9,605/1998 is formal in nature, the potential for harm to human health being sufficient for the configuration of criminal conduct ( EREsp 1,417,279-SC, Reporting Min. Joel Ilan Paciornik, unanimously, judged on 04/11/2018, DJe 20 /04/2018 ).
Doubt about mental integrity and examination
Doubts about the mental integrity and examination: It is from the wording of article 149 that “when there is doubt about the mental integrity of the accused, the judge will order, ex officio or at the request of the Public Ministry, the defender, the curator, the ascendant, descendant, brother or spouse of the accused, whether he is submitted to a medico-legal examination”.
