MARQUES, A. S.; http://lattes.cnpq.br/0126584443060120; MARQUES, Andressa Silva.
Resumo:
The Criminal Procedure, being one of the branches of the general process, has the
purpose of criminal prosecution to uncover the truth of the facts when it involves the
practice of crimes, being the necessary instrument to receive the guilt or not of an
accused individual in a criminal action. In this way, it is through the institute of
evidence that the real truth will be demonstrated, and it is necessary to collect
evidence in order to guarantee the veracity of the allegations made in the criminal
proceedings and thus assist the magistrate in forming his conviction. Thus, since the
evidence is a right of the parties to the proceedings, like any right, the right of
evidence is also limited. Such limitation in the criminal proceeding comes both from
the Federal Constitution, when it disallows the illicit evidence, in its art. 5º, LVI, and of
art. 157 of the Code of Criminal Procedure, which prohibits illicit evidence and also
illicit evidence derived therefrom. With this limitation of illicit evidence, the search for
real truth ends up becoming a secondary objective of the criminal process, since,
even if an illicit evidence demonstrates a reconstruction of the facts, convincingly, the
evidence can not be used by the magistrate for his Conviction, since it violates a
fundamental right. That is why the theory of proportionality arises, which, by weighing
interests, will show that in certain cases, interests defended by unlawful evidence
become more relevant than those that the illicit evidence contradicts. In this way, the
objective of this paper is to outline the possibilities in which the pro-illegal probative
evidence should be admitted for the defense of rights that are much more
comprehensive than a single right contradicted. To do so, it will be necessary to use
a methodology with a deductive approach, with a research technique based on
documentary data surveys, through bibliographies, jurisprudence and scientific
articles, to be able to start from a general premise and, in the end, conclude Based
on particular interpretations of the subject.