Reflections about the preclusion of the right to prove in Brazilian criminal procedure

Abstract

The article deals with the preclusion on the parties' evidentiary activity in criminal proceedings, in order to answer the following research problem: how can preclusion affect the parties' evidentiary activity in criminal proceedings? As a hypothesis, it was established that the principle of the presumption of innocence and the right to a broad defense can rule out the rules of preclusion applicable to the evidentiary activity carried out by the accused in criminal proceedings. The research was carried out in three stages, based on the constitutional and infra-constitutional rules applicable to the parties' evidentiary activity in criminal proceedings. Firstly, the study dealt with the preclusion in relation to the right to evidence. Secondly, it described the possible hypotheses of preclusion related to the parties' evidentiary activity in criminal proceedings. Finally, it sought to verify the possibility of preclusion occurring in criminal proceedings and in relation to the probative activity of the accused. Adopting the guidelines of the hypothetical-deductive method and explanatory approach, and based on the theoretical knowledge already published about the subject, the research led to the conclusion that the principle of the presumption of innocence and the right to a broad defense point to the inapplicability of preclusion in relation to the evidential activity carried out by the accused in criminal proceedings.