Indícios como meio de prova : uma perspectiva de efetividade do processo penal

Abstract

The role of evidence in criminal proceedings is still a tormenting issue. In Brazil, there are few and incomplete works that deal with the issue. In the criminal procedure code the term evidence is used constantly. Sometimes it appears as a synonym of proof, in other cases less proof. The system seems to be so inconsistent, the result of bad technique and archaic legislation. The scholars of the theme in Brazil admit that the evidence can be used as proof with restrictions. For the majority they need to be supported by direct proof, serving as a complement to that. Indeed the expression evidence is always used in the plural, as such would be its weakness and therefore could only be accepted as evidence if there is a body of evidence and proof harmonics. The restriction on the use of evidence as evidence is justified in view of the principles of real truth, existing in criminal proceedings. The sentencing in the criminal proceedings would only be appropriate when there is a certainty of hard evidence and criminal authorship. The evidence would be unable to reveal the full truth, because it is likely that the court has obtained it through a logical construction, according to the rules of the practice, while the direct evidence could rebuild the fact to be proven. The argument of the real truth is false. The full truth is absolutely unattainable. The philosophy from remote attempts to conceptualize the true reasons without success, this depends on the vision of the speaker and the human limitations of the process itself, and there is no way to get the full truth. What if it is true that the process is able to prove with the evidence available? The prosecution itself mitigates the real truth to impose a series of restrictions on the evidence, as in the case of those obtained by unlawful means. Apart from the real truth there is only the probability of occurrence of fact, whatever the means of evidence are used. The risk of a conviction is unfair in a system of criminal procedure and it only decreases when the parties ensure equal conditions (not only fictitious), it is the end of the dialectal process that can provide the truth