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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
Bruhn, Christiane Floriani. 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, 2023. Book. https://doi.org/10.3790/978-3-428-58819-0
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, [online] 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
(2023)
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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.
Table of Contents
| 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 |