Controle da admissibilidade e da valoração da prova testemunhal prestada por policiais no Superior Tribunal de Justiça do Brasil

Abstract

This research aims to investigate how the evaluation of testimonial evidence provided by police officers in the Superior Tribunal de Justiça is controllable. From the perspective of a guaranteeist epistemology, in which the admissibility and probative value of evidence must be conditioned both by the commitment to the truth and to the rights and guarantees provided for in the Constitution, the present research analyzed STJ rulings from 2018 onwards, year in which the consolidated understanding of this Court was published on the subject of witness evidence provided by police, until 1999. The selection of the judges was based on the decisions cited in the consolidated understanding, and on the decisions cited in those, retroactively, including even decisions of the Supremo Tribunal Federal (until 1973) and state courts (until 1971). The retroactive analysis of these decisions showed that the current understanding of the STJ was formed from the mistaken merger between different institutes and concepts: decisions dealing with admissibility were cited to defend the probative efficacy of the depositions; decisions dealing with admissibility in the APF were cited to defend admissibility in the process; elements of information from the police investigation were treated as evidence; and the presumption of veracity of the administrative acts was extended to the criminal testimonial evidence provided by police officers. In addition, it was found to be frequent in the sample the lack of motivation, when the motivation was not totally absent, being limited to the citation of summaries of previous judgments, the appealed judgment, or the opinion of the Ministério Público, without any arguments of the rapporteur's own. The research also found that, in the sample, the use of the reference to jurisprudence without the due analytical comparison between the previous case and the sub judice case was unanimous. It was concluded that the STJ's understanding on the subject has served as a parameter to control both the evidence admissibility and the evidence evaluation, as well as a decision rule, by establishing that the testimonies given by police officers are sufficient to guarantee a conviction. It constitutes, however, the materialization of a non-rational standard of evidence, which does not lend itself either to the search for the truth or to the guarantee of fundamental rights.