A quebra da cadeia de custódia da prova digital e os reflexos no âmbito do processo penal

Abstract

Law 13.964 of 2019 regulated the innovation of the evidence chain of custody mechanism, notably due to the introduction of article 158-A in the Brazilian Code of Criminal Procedure, which defines the chain of custody as the set of all procedures used to maintain and document the chronological history of the trace, a typical concern of the accusatory system adopted in Brazil, especially given the need to ensure the reliability and preservation of evidentiary elements. In the meantime, this monograph deals with the mechanism of the evidence chain of custody, especially with regard to the breaking of the digital evidence chain of custody and its repercussions in the context of criminal proceedings, since, despite being a recent instrument, the aforementioned law was born “obsolete”, since the legislator was silent on fundamental aspects of the procedure. In fact, the legislative omission can be seen in the absence of a specific and singular morphology for preserving the chain of custody of digital evidence and, mainly, the repercussions arising from the violation of the procedure in the context of the criminal proceedings. Therefore, we will seek to expose the repercussions of the breach of the chain of custody, especially from the jurisprudential perspective of the Superior Courts, as well as from the accusatory and defensive perspectives. Furthermore, the problem of the repercussions of the breach will be addressed, exposing the need for certification and audits of digital evidence, as well as the urgency of specific legislative regulation.