Admissibilidade da prova emprestada no processo penal

Abstract

The proof is even more important in the criminal process, considering it’s purpose. Proving, by the ways accepted in law, is an attribute of our constitutional state, that restrict the evidentiary procedure, establishing the inadmissibility of the illegal evidences. The provisions about the forms that the proof has to be taken are in the Penal Procedure Code. However, there is nothing in the Code about the borrowed evidence, that one that is transferred from a process to another, based in a procedural economy that is behind the borrowing. Also, the lending serves to provide the real truth. There is a limit for that, but, in criminal procedural, it is a need to find the true, and the borrowed proof could make it. The research, therefore, is focused on bibliography analysis. Also, on the study of the jurisprudence from the Superior Courts, in order to approach the various theories about the issue, which are the requirements to turn into possible the borrowed proof. There is not a unanimity in the logics, but’s it is clear the demand of the contradictory. Others obstacles indicated are the natural judge and the physical identity of the judge. As well, the impossibility of the borrowed proof be the only one to be based a condemnation on. It is necessary some reasonableness and proportionality, in order to understand that the interest in the proof cannot be imposed in conflict with the fundamental rights, but it is also true that it cannot be forgotten.