A standard de prova e sentença penal: um diálogo entre prática e teoria

Abstract

The topic of the thesis is the standard of proof in criminal sentencing. Based on the studies that the legal field has produced on evidence in the criminal process, this work is placed in a macro way on the relationship between judicial decision and evidence in the criminal process. The theoretical and jurisprudential fragility and the absence of a normative rule on the standards of evidence in criminal sentencing reveal the importance of the theme. The theoretical reference of the thesis is the epistemology of evidence and the critical theory of criminal procedure. The documental research carried out, quali-quanti, with the reading of 380 processes, is centered on the problem of how judges apply the standards of proof in criminal sentencing in the specialized drug courts in the district of Salvador/BA. The standard of proof of the very high probability of the accusatory hypothesis and the inexistence of evidentiary support in the defense hypotheses was the model chosen to test the selected samples. The majority of the convicts are men, young, black, from low income neighborhoods in the city of Salvador/Ba, who are arrested in flagrante delicto and with a small quantity of drugs. The testimony of the prosecution witness, the paraphernalia found in the possession of the accused, a small amount of money and the interrogation of the defendant that confirms the accusatory hypothesis (confession) are the evidence considered to determine the authorship. The burden of proof is reversed and the word of the police officer is presumed to be true. The sentences analyzed indicate that very little is required from the body of evidence in order to pass sentence. In the dialogue between practice and theory, three measures emerge as indispensable in the formulation of a demanding standard of proof for criminal sentencing in Brazil: (i) the need for a norm that obliges the sentence to have its own chapter on the statement of the facts considered proven; (ii) the prohibition of convictions based exclusively on testimonial evidence and; (iii) the indispensability of the analysis of all alternative factual hypotheses. The thesis concludes with a legislative proposal that takes into consideration the theory and the researched data.