Código de Processo Penal Comentado | Flavio Meirelles Medeiros

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Art. 279. The following cannot be experts:
I – those who are subject to the prohibition of law mentioned in nos. I and IV of Article 69 of the Penal Code;
II – those who have given testimony in the process or previously given an opinion on the object of the investigation;
III – the illiterate and those under 21 years of age .

Of those who cannot be experts

Prohibition of law:  The reference is to the original article of the CP (article 69). Considering the 1984 reform (new general part of the CP), the reference is, updated, to  article 47, items I and II, of the CP , whose wording is as follows: “The penalties of temporary interdiction of rights are: I – banning the exercise of a public position, function or activity, as well as an elective mandate; II – prohibition of the exercise of a profession, activity or craft that depend on special qualification, license or authorization from the public authority”.

Expert impediment:  This device does not exhaust the cases in which the expert cannot act in the process. There is also  article 280 , according to which “the provision on suspicion of judges is extended to experts, as applicable to them”. The hypotheses of suspicion are described in  article 254 . It should be noted that the  suspicion  referred to in Article 279 must be understood in a broad sense to also cover cases of impediment ( Article 252 ).

Those who have given testimony or previously given an opinion:  It is not a question of testimony in the capacity of an expert, one in which the expert is called to clarify doubts of the parties, the judge or the chief of police. The reference is, yes, to the testimony as a witness. The same is true of the opinion given. This is not the opinion given in the proceedings or in the investigation, as an expert. That doesn’t make you banned. It is the opinion expressed publicly or by some people, even if it is outside the records.

Illiterate people and those under 21 years of age:  Article 5 of the new CC states that minority ceases at the age of eighteen, when the person is qualified to practice all acts of civil life. This provision in no way alters the requirement that the expert be 21 years of age or older, as what the procedural legislator pursues is not exactly civil majority, but maturity, experience. As for the ban on illiterate persons acting as experts, the provision did not need to exist, insofar as a higher education degree is required from the expert ( article 159 ).


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