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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
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

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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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