O direito à admissão da prova do acusado no processo penal brasileiro e suas limitações processuais: uma busca por parâmetros no sistema norte-americano

• Autor(a) principal: Silva, Bernardo Braga e
• Data de Publicação: 2019
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9193
• topic: Right to admission of accused s evidence; Complete defense; Procedural evidentiary restrictions; Law of evidence; Compulsory process clause; Direito à admissão da prova do acusado; Ampla defesa; Limites processuais probatórios; Law of evidence; Compulsory process clause; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

The discretionary judicial limitation of the accused s right to present evidence is revealed as one of the main obstacles to a fair decision currently verified in the Brazilian Criminal Procedure. This is the reason why this work aims to analyze the disrespect to the right to present a defense, due process fundamental guarantee (art. 5º, LV of the Brazilian Federal Constitution), under the bias of undue restriction to the exercise of the defensive evidentiary right in criminal proceedings by imposing unlawful procedural restrictions to the admission of the evidence required by the accused. Based on a vision of the Criminal Procedure as a guarantor of the rights of the accused against the state power, and assuming the accused s right to present evidence as a corollary of the guarantees of a complete defense and procedural truth, the logical, epistemological, and systemic evidentiary limits provided for in our legal system will be analyzed, establishing a greater precision in their hypothesis of incidence. With the aim of finding subsidies for the relativization of such evidentiary restrictions in favor of the defendant, the United States of America's evidentiary system will be studied from the point of view of the accused s right to present evidence, arising from the compulsory process clause provided for in the Sixth Amendment of the US Federal Constitution. Considering the Federal Rules of Evidence, the hypotheses of evidentiary restrictions in the USA s legal system will be stated, as well as the way in which North-American jurisprudence and doctrine have been relativizing it when the exculpatory evidence is in check. At last, based on the US experience on the so-called law of evidence (without neglecting the appropriate adaptations), it will be proposed to reinterpret the procedural restrictions to the admission of the accused s evidence in the Brazilian Criminal Procedure, using for such an adequate balance between conflicting procedural interests, thus seeking an effective maximization of the defendant's right to defend himself by proving.