A investigação defensiva como garantia fundamental e sua função de contraponto epistêmico ao inquérito policial para o desenviesamento na formação das provas

Abstract

Given the possibility of revaluing the information gathered in preliminary investigations, by virtue of the provisions of Article 155 of the Brazilian Code of Criminal Procedure (CPP), especially after the Brazilian Supreme Court's decision regarding the constitutionality of the judge of guarantees, whose competence ends with the filing of the indictment, this study aims to examine, in light of penal guaranteeism, whether the defense investigation can fulfill a role of epistemic and equal counterpoint to the police investigation in the formation of evidence. It is understood that this instrument, due to its discursive unilaterality, exerts cognitive contamination through biases centered on the guilt of the accused, and the defense investigation can serve as a mechanism to contain the automatic adherence to incrimination, through adversarial proceedings and autonomous evidentiary production. The research uses a theoretical-reconstructive method, seeking an interdisciplinary reinterpretation of the defense investigation, especially with legal epistemology, evidence theory, and cognitive psychology. In turn, the methodology applied is qualitative and exploratory, using bibliographic sources, academic articles, legislative and jurisprudential documents, without neglecting the most notable debates on the researched object in national and foreign law. Regarding its character, it is theoretical-practical, proposing a joint examination, in abstract and in concrete terms, of the legal content of the analyzed institute, with the purpose of suggesting paths for its adequate performance. It is concluded that defensive investigation has a debiasing potential, insofar as it contributes to a more dialectical process, reinforcing the presumption of innocence and the accusatory system, as long as observed certain factual and normative limits and possibilities.