Provas ilegítimas e o princípio da instrumentalidade das formas.

Abstract

The law n° 11.690/2008 deployed in the Criminal Suit Brazilian law a new discipline for the proof. This law, among other changes, endorsed the art. 5, LV, of the Constitution to expressly provide for the sealing of the admission of such evidence and also established a proof of concept illegal, "thus understood that obtained in violation of constitutional or statutory standards." Nothing was mentioned about the illegitimate proof, so read those obtained in violation of a provision of procedural law. From this study it appears that this differentiation should only prosper for doctrinal purposes of luck in that regard the use of them, this distinction should not prosper. This paper is used for research works on doctrinal expertise in criminal proceedings, and in scientific papers prepared on legal sites, according to the deductive method in the exposure of the subject. This paper aims to complete the detailed study of existing questions about the central issue both in doctrine and in jurisprudence. The rigor of procedural form is tempered by the use of criteria used by the judge on law enforcement in this case. One of these criteria is the balance made between the legal and wounded to the use of illegal proof and legal rights that may be affected with its non-use. The use of proportionality also shows just solution in law enforcement procedure in this case. The last principle that should be used in consideration of contrasting values is the principle of instrumentality of the forms, which notes that the end of the standard outside answered even if the established order infraction to act for the procedure. Exposed the theories of admissibility and inadmissibility of proof as illegitimate and decisions by some courts has been that the best solution is the use of illegal proof if they can be used by the defendant without any violation of the legal rights of a higher profile and the purpose sought by the act has been reached.