A prova necessária e suficiente para a decisão de pronúncia ante a constituição federal

Abstract

The Federal Constitution erected in art. 5th, XXXVIII, the Jury's Court among the Individual Rights and Guarantees, Fundamental Rights and Guarantees, thus establishing four pillars that should guide the people's court. They are: the fullness of defense, the secrecy of voting, the sovereignty of the verdicts and the competence to judge intentional crimes against life. Nevertheless, constitutional principles have been mitigated, distorted, if not reversed, because of the jurisprudence, but also by the infra-constitutional legislation, which has been entrusted with governing the organization of the Jury. To make it worse, some legislative changes, instead of moving towards the Constitution, that instituted the accusatory system, promoted legislative changes strengthening the inquisitorial bias. As if that wasn´t enough, jurisprudence, at the intersection of the two-phase jury rite, began to admit, for the pronunciation, the figure of the in dubio pro societate to the detriment of the in dubio pro reo, thus prevailing the interests of society without any reason. It is thus perceived that what should be a guarantee of the accused took on a quite opposite reality, since to the extent that the sentence council does not substantiate the verdict, to admit that a proceeding, under these conditions listed above, goes to judgment, is to return to the ordeals of the Middle Ages or Judgment of God and await divine intervention to promote the acquittal of the defendant. Thus, in order to reestablish the intention of the Constituent Assembly and to treat the jury's institute as a fundamental right of the accused, it was sought, through the present dissertation, to have as a line of research contemporary criminal legal systems, to fix some points, among them: to examine the content and the real meaning of the constitutional principles present in the Constitution. To depart from the criteria which support and lodge the in dubio pro societate at the time of the decision to pronounce. To assign to the contraditory the necessary sine qua non condition of the criminal evidence, especially in a system where the judges do not need to substantiate their votes. And, to establish forms of assessment of the criminal evidence, to reduce the existing discretion in the system of free convincing motivated. Thus, through the use of certain criteria and standards of proof, specific to the US legal system, it was sought to demonstrate that such instruments could help in the task of ascertaining whether the means of proof fulfills the conditions to legitimize a judicial decision in a State Democratic Right. The equivalence of the presumption of innocence with the standard of proof beyond reasonable doubt, and its incorporation to avoid mitigations or reductionisms. Thus, the central theme of the dissertation, the magistrate's conviction about materiality and the existence of sufficient evidence of authorship and participation at the time of pronouncement were addressed, conditioning this judicial conviction to the contradictory and qualitative examination of evidence through the standards of proof. The jurors also received our attention, by virtue of having judged under intimate conviction, being able to decide on any or no basis. Thus, the dangers of pronouncing, without strong and robust evidence, the materiality of the crime and of authorship or participation have been demonstrated. Thus, it is only in this way that it is possible to restore the intention of the Constituent Assembly and to establish the Jury's Court as the fundamental right of the accused, always having as reference, the dignity of the human person.