Teoria dos frutos da árvore envenenada no direito brasileiro
The aim of this essay is to better understand the application of the theory of the fruit of the poisonous tree in the Brazilian law, as well as its origin in the American law, its relationship with the exceptions to the Exclusionary Rules, in order to point out any weaknesses in the current treatmen...
Na minha lista:
| Autor principal: | |
|---|---|
| Outros Autores: | |
| Formato: | bachelorThesis |
| Idioma: | pt_BR |
| Publicado em: |
Universidade Federal do Rio Grande do Norte
|
| Assuntos: | |
| Endereço do item: | https://repositorio.ufrn.br/handle/123456789/55770 |
| Tags: |
Adicionar Tag
Sem tags, seja o primeiro a adicionar uma tag!
|
| Resumo: | The aim of this essay is to better understand the application of the theory of the fruit of the poisonous tree in the Brazilian law, as well as its origin in the American law, its relationship with the exceptions to the Exclusionary Rules, in order to point out any weaknesses in the current treatment of illegal evidence. In this context, using a deductive methodology, as well as bibliographical, documentary and jurisprudential research, the study also identified the impact of the principles relating to evidence and criminal procedure on the right to inadmissibility of illegal evidence. Clearly influenced by American jurisprudence, which was responsible for developing not only the theory of the fruit of the poisoned tree, but also its exceptions, a Law nº 11.690/2008 was responsible for bringing a new look to the treatment of illegal evidence, by including new institutes in Article 157 of the Criminal Procedure Code. The answers identified throughout the work showed that the final wording of the provision is imperfect and indeterminate, compared to the reasoning used in the decisions that gave rise to the theories in the Comparative Law. Therefore, in relation to the theories of lack of causal connection, the independent source and the inevitable discovery, there is a normative imprecision responsible for conferring a certain degree of subjectivity on the admissibility of illegal evidence. In fact, the use of illegal evidence in the process ends up creating two risks, namely that the conviction will be based on the use of illegal evidence, and that the process will be considered null and void by the higher courts. In view of the clear damage to the fundamental rights and guarantees of those involved, there is an urgent need to adopt measures that minimize any irregularities during evidentiary activity, through greater protection of the theory of the fruit of the poisoned tree and the Exclusionary Rules. To this end, the research has highlighted the need to mitigate the independent source theory, to recognize the unconstitutionality of the inevitable discovery theory and the redundancy of the theory of the lack of causal connection. On the other hand, it is essential to standardize the clauses limiting good faith, unlawful evidence pro reo and a better distribution of the burden of proof. |
|---|