As provas obtidas por meios ilícitos e seu juízo de inadmissibilidade no processo penal brasileiro

Abstract

This thesis anlysis the constitutional principle of exclusionary rule of illegaly obtained evidence in brazilian’s criminal procedure. It demonstrates how the wrongful opinion that gives the inadmissible evidence the same treatment of procedural nullities’ system, was connected to the application of proportionality’s doctrine, resulting in mitigation of the constitutional rule (art. 5º, LVI), compromising due process of law and judge’s impartiality. In order to achieve the proposed objective, the research starts with a historical investigation of the principle’s origins, delimiting it’s extention considering the theory adopted in the Constitution and it’s nature as human right. Subsequently, it studies the three main theories regarding the admissibility of illegal evidence, pointing out their ideas and promoting a critical analysis of their foudations. A qualitative jurisprudential overview about the theory of proportionality is also presented, focusing in it’s regulatory model as a doctrine that relativizes the constitutional rule. It also delimitates the cognitive effects potentially provoqued in judge’s conviction through the contact with the inadmissible evidence, violating his formal impartiality. Finally, observing the conclusions extracted from cognitive psychology experiments, debiasing mechanisms are discussed as a way of mitigating the phenomenon, followed by the elaboration of a proposal that aims to establish more rigorous control over the insertion of illegal evidence in criminal procedures, avoiding judge’s conviction contamination and improving Justice.