Investigação defensiva: repercussões sobre a atuação da defesa na produção de provas durante a fase preliminar.

Abstract

The great potential of defensive criminal investigation in the Brazilian legal system is known, however, it is still treated with stigma by the bodies responsible for the investigation in the preliminary phase. In this regard, a critical analysis of the evidence production system during the police investigation becomes necessary, as the Judiciary Police and the Public Prosecutor's Office repress the actions of the investigated person's defense, characterizing a clear violation of the principles of the adversarial system and broad defense. In fact, the preliminary investigation tends to be accusatory in the Brazilian legal system, since the performance mainly of the ministerial body is based on the collection of information capable of justifying the imputation to the accused and the consequent opening of criminal proceedings. In this way, defensive investigation proves to be a means of ensuring effective isonomy between the parties in the criminal prosecution, above all, through the aim of elucidating the real truth of the facts, within a perspective of loyalty and good faith. Therefore, the present work deals with the need for the participation of the defense during the production of evidence in the preliminary investigation, a theme that will be studied in view of the Project of the new Code of Brazilian Criminal Procedure, with the subsequent analysis of the practical repercussions of the defense's performance in the evidentiary production. Thus, for a criminal proceeding to be considered fair and effective, the role of the defense in collecting elements to compose the police investigation is indispensable.