Standards de prova para a decretação da prisão preventiva

Abstract

This study examines the evidentiary standards for ordering pretrial detention within the Brazilian criminal procedure considering the lack of clear criteria regarding the degree of evidentiary sufficiency required for factual determination. Although Article 312 of the Code of Criminal Procedure mandates the demonstration of fumus comissi delicti and periculum libertatis there is no precise definition of the level of confirmation necessary for these requirements to be deemed proven. Drawing from the understanding that procedural truth is necessarily a probable truth constructed based on the degree of confirmation provided by available evidence this research analyzes evidentiary standards as instruments to enhance the rationality and legitimacy of judicial decisions. It examines the North American legal experience specifically the standards of preponderance of the evidence and clear and convincing evidence as well as proof beyond a reasonable doubt to identify rational and objective parameters compatible with the gravity of the legal consequences involved. Based on this framework it is argued that the demonstration of materiality and authorship and the danger posed by the defendant’s liberty must meet a high threshold of evidentiary confirmation to prevent decisions based on mere suspicion or subjective conjecture. Finally the study proposes the adoption of the clear and convincing evidence standard as an adequate parameter consistent with the defendant's fundamental guarantees and the exceptional nature of pretrial detention.