The Procedure of Evidence Taking in the Brazilian Criminal Trial

Christiane Floriani Bruhn

doi:10.3790/978-3-428-58819-0

The Procedure of Evidence Taking in the Brazilian Criminal Trial

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Bruhn, C. (2023). The Procedure of Evidence Taking in the Brazilian Criminal Trial. An Analysis Inspired by Selected Features of the German Criminal Procedure and the US-American Criminal Procedure and Evidence Law. Duncker & Humblot. https://doi.org/10.3790/978-3-428-58819-0

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The Procedure of Evidence Taking in the Brazilian Criminal Trial

An Analysis Inspired by Selected Features of the German Criminal Procedure and the US-American Criminal Procedure and Evidence Law

Bruhn, Christiane Floriani

Beiträge zum Internationalen und Europäischen Strafrecht / Studies in International and European Criminal Law and Procedure, Vol. 55

(2023)

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Book Details

Publisher Name: Duncker & Humblot
ISBN: 978-3-428-58819-0
978-3-428-18819-2 (print edition)
DOI: https://doi.org/10.3790/978-3-428-58819-0
Edition: 1
Language: English
Pages: 278
Collections: NBE D&H
NBE RECHT
RECHT 2023
D&H 2023
Subjects: Comparative law

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Institution: € 136.00 (incl. local VAT if applicable)
Individual: € 89.90 (incl. local VAT if applicable)

About The Author

Christiane Floriani Bruhn was born in Rio de Janeiro, Brazil. She obtained a Bachelor of Law’s degree from the Federal University of Rio de Janeiro (2005-2010). Since 2011, she is a licensed lawyer in Brazil. She was a master’s student at the University of Freiburg, where she graduated with the degree of Legum Magister (2013-2016). During her doctorate at the University of Freiburg (2016-2021), Ms. Bruhn worked as a doctoral researcher and was a member of the International Research School for Comparative Criminal Law at the Max Planck Institute for Foreign and International Criminal Law (renamed ›Max Planck Institute for the Study of Crime, Security and Law‹).

Abstract

The Brazilian criminal procedure law needs reform. In contrast to the progressive Constitution of 1988, the current Code of Criminal Procedure of 1941 is repressive and highly formalistic. As to adapt the Code of Criminal Procedure to the Constitution, numerous modifications were made to the former. Despite these laws partly modifying both features of procedural and evidence law, the desired changes to the trial setting and, more importantly, in effectively safeguarding the defendant’s procedural rights were not achieved. Hence, this research seeks to assess whether and to what extent the procedural safeguards afforded to Brazilian defendants at criminal trials are efficient. This was achieved by means of a comparative study where the procedural safeguards afforded to German and US-American defendants were examined. This analysis seeks to lead to the identification of the main problematic features of the Brazilian Code of criminal procedure and to make suggestions to its improvement.

Section Title	Page	Action	Price
Foreword	7
Inhaltsverzeichnis	9
List of Abbreviations	17
Introduction	21
I. Research Subject	21
II. Research Objectives	22
III. Research Method and Scope of Analysis	22
IV. Structure of the Study	25
Part 1: The Development of the Normative Framework of the Brazilian Criminal Procedure	27
A. Historical Background	27
B. The Current Code of Criminal Procedure	30
I. The Enactment of the Federal Constitution	31
II. Modifications to the Code of Criminal Procedure	32
1. Legislative Reforms	33
2. Outcome of the Previous Reforms	35
3. Latest Statutory Modifications	37
Part 2: Country Reports	40
Chapter 1: Germany	40
A. Introduction	40
B. Overview of the Criminal Procedure	41
I. Legal Sources	41
II. Court System	43
III. Main Procedural Actors	45
1. Judges	46
2. Prosecutors	47
3. Defense Counsel	48
IV. Procedural Phases	49
1. Investigatory Phase	49
a) Evidence Gathering by the State	49
b) Rights of the Defense in the Investigatory Phase	51
2. Intermediate Proceedings: Evidentiary Standard of hinreichender Tatverdacht	52
3. Main Proceedings	53
a) Preparation for the Main Hearing	53
b) Main Hearing	54
aa) Determining Attendance of the Procedural Actors and that Evidence is Present	54
bb) Defendant's Examination	54
cc) Evidence Taking and Closing Arguments	55
dd) Deliberations, Voting and Pronouncement of Judgment	56
C. Evidence Law	57
I. Introduction	57
1. Finder of Fact: Professional and Lay Judges	57
2. Trial Setting	58
a) Officialized Factfinding	58
b) Rights of the Prosecution and Defense in Participating in the Presentation of Evidence	59
II. Methods of Proving Facts	60
1. Exceptions to the Need of Proof	60
2. Strict and Discretionary Forms of Proof	61
III. Means of Evidence	62
1. Defendant	62
2. Witnesses	65
a) Rights and Duties	66
b) Particularities of the Examination of Witnesses	68
3. Experts	69
4. Documentary Evidence	70
5. Inspection	72
IV. Admissibility of Evidence	74
1. Admissibility of Evidence and Rationale Behind Limiting or Excluding Evidence	74
2. Statutory and Constitutional Rules Excluding or Limiting Evidence	75
a) Protection of the Defendant's Right of Personality	75
b) Nemo Tenetur Se Ipsum Accusare	76
c) Prohibited Methods of Examining the Accused	79
d) Witnesses' Rights and Duties to Refuse to Testify	80
aa) Right to Refuse to Testify	80
bb) Duty to Refuse to Testify	81
D. Evidentiary Principles and Procedual Safeguards	82
I. Principle of Ascertainment of the Truth	83
II. The Defendant's Right to Request the Court to Take Evidence	83
III. Principle of Free Evaluation of Evidence	86
Chapter 2: The United States of America	87
A. Introduction	87
B. Overview of the Criminal Procedure	89
I. Legal Sources	89
II. Court System	90
III. Main Procedural Actors	91
1. Judges	91
2. Prosecutors	92
3. Defense Counsel	93
IV. Procedural Phases	94
1. Investigatory Phase	94
a) Evidence Gathering by the State	94
b) Rights of the Defense Prior to Trial	95
2. Adjudicatory Phase	96
a) Issuance of a Complaint and Initial Appearance	96
b) Grand Jury or Preliminary Hearing: Evidentiary Standard of Probable Cause	97
c) Arraignment and Pretrial Motions	99
d) Trial	100
aa) Jury Selection	100
bb) Opening Statements, Evidence Taking, and Closing Arguments	101
cc) Jury Instructions, Jury Deliberation, and Announcement of the Verdict	103
e) Sentencing Phase	103
C. Evidence Law	104
I. Introduction	104
1. Finder of Fact: Jury and Bench Trials	105
2. Trial Setting	106
a) Party-Controlled Presentation of Evidence	106
b) The Role of the Trial Judge	107
aa) Role as an Umpire	107
bb) Judicial Discretion in Presenting Evidence	109
II. Methods of Proving Facts	110
1. Evidence: Direct and Circumstantial Evidence	110
2. Alternatives to Formal Proof	110
III. Types of Evidence	112
1. Testimonial Evidence: Defendant, Witnesses and Expert Witnesses	112
a) Witness Competency	112
b) Examination of Witnesses	114
aa) Credibility and Rehabilitation of Witnesses	115
bb) Impeachment of Witnesses	115
2. Real Evidence: Documentary and Demonstrative Evidence	118
IV. Admissibility of Evidence	120
1. Admissibility of Evidence and Rationale Behind Limiting or Excluding Evidence	120
2. Statutory and Constitutional Rules Excluding or Limiting Evidence	121
a) Probative Value v. Prejudicial Effects	121
b) Privilege Against Compulsory Self-Incrimination	123
c) Search and Seizure	124
d) Privilege	125
e) Hearsay	127
D. Procedural Safeguards	129
I. Safeguards to the Adversarial Trial Setting	129
1. Discovery Rights of the Defense	129
2. Compulsory Process Clause	132
3. Confrontation Clause	133
II. Safeguards to Lay Factfinding	135
1. (Strict) Rules as to the Admissibility and Exclusion of Evidence	136
2. Jury Instructions	136
Chapter 3: Brazil	137
A. Introduction	137
B. Overview of the Criminal Procedure	139
I. Legal Sources	139
II. Court System	142
III. Main Procedural Actors	142
1. Judges	143
2. Prosecutors	144
3. Defense Counsel	145
IV. Procedural Phases	146
1. Investigatory Phase	146
a) Evidence Gathering by the State	146
b) Rights of the Defense in the Investigatory Phase	147
2. Adjudicatory Phase	149
a) Filing a Bill of Indictment and the Evidentiary Standard of Justa Causa	149
b) Filling a Written Reply to the Bill of Indictment and Setting a Date for Trial	150
c) Procedure of Evidence Taking	151
d) Closing Arguments and Sentencing	152
C. Evidence Law	153
I. Introduction	153
1. Finder of Fact: Professional Judges	153
2. Trial Setting	154
a) Elements of Officialized Fact-Finding	154
b) Elements of Party-Controlled Presentation of Evidence	156
II. Methods of Proving Facts	157
1. Information Gathered in the Investigatory Stage and Evidence Sensu Stricto	157
2. Direct and Circumstantial Evidence	158
III. Means of Evidence	159
1. Defendant	159
a) Examining the Defendant	160
b) Duty to Attend Trial and Exception to the Defendant's Examination at Court	163
2. Witnesses	163
a) Summoning Witnesses	165
b) Examining Witnesses	166
3. Victim	169
4. Experts	170
5. Documentary Evidence	171
IV. Admissibility of Evidence	172
1. Admissibility of Evidence and Rationale for Limiting or Excluding Evidence	172
2. Statutory and Constitutional Rules for Excluding or Limiting Evidence	173
a) Nemo Tenetur Se Ipsum Detegere	173
aa) Right to Silence	174
bb) Right Not to Be Compelled to do Something Except by Virtue of Law	175
b) Inadmissibility of Illegally Obtained Evidence	177
c) The Witnesses' Rights and Duties to Refuse Testimony	179
d) Hearsay	180
D. Evidentiary Principles	181
I. Principles Associated to the Officialized Factfinding	181
II. Principles Associated to the Party-Controlled Presentation of Evidence	183
1. Principles of Audiatur et Altera Pars and (the Right) to a Full Defense	183
2. Principle of Equality of Arms	184
Part 3: Key Concepts of Comparative Law, Comparative Study, and (Possible) Solutions to the Brazilian Criminal Procedure	186
Chapter 4: Terminology in Comparative Law	187
A. Introduction: Misapprehension of Legal Definitions	187
B. Theoretical Framework: Procedural Models	188
I. Definitions	188
II. Main Features	191
1. Inquisitorial System	192
a) Historical Approach	192
b) Analytical Approach	193
2. Adversarial System	195
a) Historical Approach	195
b) Analytical Approach	196
III. Differences in the Concept of Truth and Justice	197
IV. Structural Strengths and Weaknesses	200
1. Inquisitorial System	200
2. Adversarial System	202
V. Definition of “Accusatorial”	202
C. Legal Definitions in the Brazilian Criminal Procedure	203
I. Misdiagnosis of its Features as a Hinderance in Finding Effective Solutions	203
II. Defining the Predominant Evidentiary Arrangement of the Brazilian Criminal Procedure	205
Chapter 5: The Importance of Identifying both a Country's Normative Framework and its Legal Culture in Comparative Law	209
A. Introduction	209
B. Legal Translations	211
I. Procedural Culture	211
II. Importance of Understanding the Receiving Country's Institutional Context	213
III. The Introduction of Legal Ideas Conducted in Disregard to a Country's Normative Framework and Procedural Culture	214
1. Example in the German Criminal Procedure	215
2. Example in the Brazilian Criminal Procedure	216
C. Identifying the Brazilian Legal Culture	217
I. The Influence of the Historical Background	218
II. The Role of the Procedural Actors: The Gap Between the Normative Framework and the Legal Culture	219
Chapter 6: Comparative Study and (Possible) Solutions to the Brazilian Criminal Procedure	222
A. Identifying the Main Problematic Features	222
I. Alleged Reason: “Inquisitorial” Features	222
II. Possible Reasons	224
1. Unawareness of the Indispensability of Procedural Safeguards	224
a) Sample of Lack of Procedural Safeguards in a Setting of Party-Controlled Presentation of Evidence	226
b) Consequences of the Lack of Procedural Safeguards in a Setting of Officialized Factfinding	227
2. Features Unrelated to the Inquisitorial Evidentiary Arrangement that Increase the Risk of Judicial Bias	229
a) Mostly Partisan Character of the Criminal Investigation	229
b) Lack of Division of Judicial Roles	230
B. (Possible) Solutions to Selected Features of the Brazilian Criminal Procedure	231
I. Lack of Effective Procedural Safeguards	231
1. Initial Assessment	232
2. Countering the Structural Weaknesses Stemming from the Features of the Adversarial Evidentiary Arrangement	234
a) Rights Afforded to the Defense in Gathering Evidence Prior to Trial	235
b) Rights Afforded to the Defense in Presenting Evidence at Trial	238
aa) The Extent of the Right to Subpoena	238
bb) As to the Desirability of Employing Cross-Examination in Examining Witnesses	240
c) Suggestions	241
3. Countering the Structural Weaknesses Stemming from the Features of the Inquisitorial Evidentiary Arrangement	243
II. The Trial Judge's Access to Information that was Gathered in the Investigatory Phase and its Use in Basing a Conviction	248
1. Comparative Study	251
a) Germany	251
b) The United States	252
2. Suggestions	253
C. Silver Lining: A Case for the Benefits of a Trial Setting with Both Inquisitorial and Adversarial Elements	254
Conclusion	257
Bibliography	261
Subject Index	272

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The Procedure of Evidence Taking in the Brazilian Criminal Trial

An Analysis Inspired by Selected Features of the German Criminal Procedure and the US-American Criminal Procedure and Evidence Law

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