THE CRIM INAL JUSTICE SYSTEM IN BRAZIL:A BRIEF ACCOUNT
Andrey Borges de Mendonça

I. INTRODUCTION
Brazil embraces the Civil Law tradition,and therefore its legal system depends upon a systematicinterpretation of written and general rules, passed by the legislature or, exceptionally, by the Executive. Nonetheless, the influence of Common Law practices is increasing. For instance, since 2004, theBrazilian Supreme Court is authorized to set mandatory precedents in exceptional circumstances,obliging both the Executive and lower ranks of Judiciary.Up to now,the Supreme Court has acted in
32 instances.
The Brazilian criminal justice system is framed by the 1988 Constitution, which includes dispositions about:(i)the elaboration of rules on criminal and procedural matters;(ii)the Judiciary and otheressential institutions;(iii)the procedural guarantees;(iv)juridical international cooperation.In a lower
hierarchy than the 1988 Constitution,the 1941 Code of Criminal Procedure and many sparse regulations
address criminal investigation, prosecution and adjudication in a more detailed manner.

II. THE FUNCTIONING OF THE BRAZILIAN CRIM INAL SYSTEM OF JUSTICEIn Brazil,besides the Especial Justices,or Special Courts,(Military and Electoral Courts),there areFederal and State Justices.In general,the Federal Justice(Federal Courts)has jurisdiction over crimes
involving the interests of the Federal Government and other crimes indicated by Article 109 of theConstitution. The competence of the State Justice (State Courts) is residual. The Federal Public
Prosecutors act in the Federal Courts, investigating and prosecuting federal crimes, like currency
counterfeiting;smuggling;federal tax dodging;evasion of social security contributions;slave labour;formation of cartels;money laundering;illegal transfer of money overseas;banking frauds;international drug trafficking;internet paedophilia;crimes committed byInternal Revenue employees,Federal
Police officers or by personnel of any federal agency or department;environmental crimes,etc.1 The
Federal Prosecutor, Federal Public Prosecution Service of Brazil. The author would like to thank Marcela Harumi
Takahashi Pereira for her assistance in co-authoring this paper.
1According to the Federal Constitution,Article 109:“
The federal judges have the competence to institute legal proceeding
and trial of:()IV ― political crimes and criminal offenses committed against the assets, services or an interest of
the Union or of its autonomous agencies or public companies,excluding misdemeanours and excepting the competenceof the Military and Electoral Courts;V ― crimes covered by an international treaty or convention,when,the prosecution
having started in the country,the result has taken place or should have taken place abroad,or conversely;V-A ― cases
regarding human rights referred to in paragraph 5 of this article; VI ― crimes against the organization of labour and,in the cases determined by law, those against the financial system and the economic and financial order;VII ― habeas
corpus,in criminal matters within their competence or when the coercion is exercised by an authority whose acts are notdirectly subject to another jurisdiction;VIII ― writs of mandamus and habeas data against an act of a federal authority,
except for the cases within the competence of the federal courts; IX ― crimes committed aboard ships or aircrafts,
excepting the competence of the Military Courts;X ― crimes or irregular entry or stay of a foreigner, execution ofletters rogatory, after exequatur, and of foreign court decisions, after homologation, cases related to nationality,
including the respective option, and to naturalization; XI ― disputes over the rights of Indians. ()Paragraph 5. Incases of serious human rights violations, and with a view to ensuring compliance with obligations deriving frominternational human rights treaties to which Brazil is a party,the Attorney-General of the Republic may request,before
the Superior Court of Justice,and in the course of any of the stages of the inquiry or judicial action,that jurisdiction on
the matter be taken to Federal Justice”.This and all the quotations are from Constitution of the Federative Republic of
Brazil:Constitutional text of October 5, 1988, with the alterations introduced by Constitutional Amendments no.1/1992
through 64/2010 and by Revision Constitutional Amendments no. 1/1994 through 6/1994. ― 3. ed. ― Brasilia:Chamberof Deputies, Documentation and Information Center, 201063

RESOURCE MATERIAL SERIES No. 92
State Public Prosecutors act in the State Courts and investigate and prosecute crimes like murder,
robbery, fraud, and all the offenses not framed in the other Courts.
In essence, there are four different moments in the functioning of the Brazilian criminal system ofjustice:firstly, the investigative Police, the Public Prosecution or another legally authorized organ
collects, if necessary, evidence of a fact that might be a crime and its agent (investigation);secondly,
the Public Prosecution or, exceptionally, the victim accuses the possible agent (prosecution);thirdly,
the Judiciary convicts or acquits the defendant (adjudication);fourthly, the criminal condemnation is
implemented (execution).
During the first phase, there is an inquisitorial and not an adversarial system;the suspects may
choose whether to be assisted or not by a lawyer,and,on their own initiative,may access non-sealed
evidence regarding themselves.Judicial intervention occurs exceptionally,for instance,when a temporary prison is required.
In the second phase,the Prosecutor decides whether to sue or not.This decision is not discretionary,and whenever there is some evidence of a crime,there shall be an accusation.However,there are a few
attenuations to this rule:(i)insignificant disconformities to criminal law may be considered irrelevant;(ii) some minor offences may not be investigated and tried if, given certain conditions, the possible
agent voluntarily accepts light “penalties”.
In the third and fourth phases, there is a judicial process in an adversarial system; the legal
assistance is mandatory and,in practice,ineffective to those who cannot afford private lawyers.It may
be noticed that also during the investigation phase, the optional legal assistance will be guaranteed
only to those who can afford private lawyers. With regard to criminal execution and imprisonment,
Fingermman reports that Brazil maintains the fourth largest imprisoned population in the world,being
exceeded only by the USA,Russia and China.2 The author adds that “
nearly half of Brazilʼ
s incarcerated population is composed of pre-trial prisoners”and “80 per cent of the prisoners in Brazil are unable
to afford a private lawyer”.3
The first, second and third phases ― investigation until trial ― will be the objects of deeper
explanations. The next flowchart shows, briefly, how Brazilʼ
s criminal system works.

A. Investigation
The agencies and organizations responsible for criminal investigations in Brazil are, mainly, theFederal Police (as the name explains, act in the whole country)and the Civil Police (that act in eachState).The Federal Police investigate:(i)criminal offences against the political and the social order orto the detriment of property, services and interests of the Union and of its autonomous government2Isadora Fingermann, “The challenges of access to justice and enforcement of the right to counsel in Brazil”,Criminal

Justice Matters, 92:1, 24-25.
3Ibid.

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entities and public companies (in one word,federal crimes),as well as other offences with interstate orinternational effects and requiring uniform repression as the law shall establish;(ii) illegal traffic ofnarcotics and like drugs,as well as smuggling,without prejudice to action by the treasury authorities
and other government agencies in their respective areas of competence. According to the Brazilian
Constitution, it is incumbent upon the civil police, except for the competence of the Union,to investigate criminal offences,with the exception of military ones.In other words,the Civil Police investigate
crimes adjudicated by the State Courts and the Federal Police the crimes judged by the Federal Courts,
the illegal traffic of narcotics and like drugs,smuggling and other offences with interstate or international effects requiring uniform repression as the law shall establish.
Also, there are other government agencies that investigate crimes in their respective areas ofcompetence,although this is not their primary attribution.These agencies investigate when a criminal
offence is discovered during the regular exercise of their legitimate functions. For instance:(i) The
Environmental Agency(Ibama4)is responsible for investigating offences related to the environment;(ii)5) is responsible for investigating offences related with
Internal Revenue Service (“Receita Federal”
revenue frauds and other federal tax frauds; (iii) the Central Bank (“Banco Central do Brasil”6)
investigates financial crimes;(iv) the Securities and Exchange Commission of Brazil (“Comissao de
Valores M obiliarios-CVM ”7)investigates offences in the securities market;(v)the COAF is the Brazilʼs
FIU ― Financial Intelligence Unit ― acting in anti-money laundering and countering the financing ofterrorism activities.8
As said above,these agencies are not focused primarily on investigating crimes.They do so when,
while developing their activities, they realize that a crime has been committed. In general, at the endof their activities,these agencies communicate to the Prosecutorʼs Office,sending the evidence that anoffence has occurred. Sometimes, just with the information sent by these agencies, it is impossible toinitiate an immediate prosecution,so the prosecutor can complement the investigations,or it is possible
to order the police to continue the investigation.
The investigation conducted by the Police is made in a police enquiry ruled by a chief police officer
or police commissioner. These agents are graduated from law school and conduct the police enquiry
under the supervision of the prosecutor.The judge acts in the investigation exceptionally,just when it
is necessary to restrict the suspectʼs rights or guarantees.
In Brazil,in general,public prosecutors cannot command the above-mentioned investigative organizations directly in a criminal investigation,but can request investigatoryprocedures and the institutionof a police investigation. Nonetheless,there are few good examples ofJoint Venture investigations,theso called “Task Forces”(like the Banestado case,that investigated the financial crimes related to the
Bank of Banestado, in the Brazilian State of Parana, with great results), where the Prosecutors cancommand the agents of other agencies, although there is no regulation of the Task Forces in Brazil.
According to the Brazilian Constitution,among other institutional functions of the Public Prosecution, it is their task to initiate, exclusively, public criminal prosecution,9 under the terms of the law(article 129, I)and to exercise external control over police activities (article 129,VII).According to apart of the doctrine and the case law, based on these constitutional articles, it is possible for theprosecutors to conduct their own investigation,grounded in the implicit power theory.In fact,a lot of
corruption cases and important crimes were solved because of the prosecutorsʼinvestigations,bringing
to court a lot of politicians and agents used to impunity.In general,the prosecutorsʼinvestigations are
more efficient and independent than the ones conducted by the police, especially because the police
4M ore information available at

http://www.ibama.gov.br>, but only in Portuguese.
http://www.receita.fazenda.gov.br/>, but only in Portuguese.
6M ore information available at http://www.bcb.gov.br/?ENGLISH>, in English.
7M ore information available at http://www.cvm.gov.br/ingl/indexing.asp>, in English.
8M ore information available at https://www.coaf.fazenda.gov.br/conteudo-ingles/about-money-laundering>,in English.
9 Private prosecution in Brazil is possible in two cases.The first,when the criminal code said that a specific offence justcan be prosecuted by the injured.The second,according to article 5o,LIX,of the Constitution:“
private prosecution in thecases of crimes subject to public prosecution shall be admitted, whenever the latter is not filed within the period
established by law”
5M ore information available at65

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officers do not have independence in their investigations and can be taken offthe case bytheir superior,which is impossible when it comes to prosecutors.10
On the other hand,a part of the doctrine dissents about the possibility of prosecutorʼ
s investigation,
based on the alleged abuses committed by the prosecution and the lack of legal regulation about the
subject. In fact, there is no legal regulation about investigations conducted by the public prosecutors.
Despite that discussion, it is common for prosecutors to investigate a lot of crimes on their own,
especially crimes committed by police agents and corruption, with very good results. In this sense,toregulate these activities,there is a resolution (the level of which is below law)by the National Councilof the Public Prosecution that regulates the investigation made by the prosecutors.11 When theProsecutor directly makes the investigation,he may interview the suspects and key witnesses directly.
Furthermore, he is authorized to access public databases, to require information, exams, expert
examination and documents from public and private authorities and request the police force to help theinvestigation.
The Grand Bench of the Supreme Court in Brazil has not decided yet whether it is possible forprosecutors to investigate, although there are other decisions of that court, from the benches,12
accepting the prosecutorʼ
s investigation.The tendency of that Supreme Court is to accept the prosecutorʼ
s investigation at least in cases involving crimes committed by police officers and in other cases
where the police do not have interest in investigating.
Very recently,there was a legislative proposal for changing the 1988 Constitution in order to restrict
the legitimacy to conduct investigation solely by the Police, especially to forbid the prosecutorʼsinvestigation. This attempt, inter alia, has motivated several recent popular manifestations all overBrazil, and ended up being rejected by the Congress on June 25,2013.There was a general belief thatthe proposed legislative alteration would propitiate impunity,as criminal investigations would become
more unlikely, especially because the police crime clearance rate is very low, below 10%.
To sum up,there is a lot of discussion in this field in Brazil currently,but the tendency is to accept,
although with limitations,the possibility of the prosecutors to investigate.In cases where the prosecutors investigate,the judge oversees the investigation,especially authorizing restrictive measure.Also,
when a suspectʼs rights are disrespected, the judge may be required to correct the alleged abuse.
At this point,it is important to outline the investigative procedure.In fact,there is no procedure to
be strictly observed. The president of the investigation (the police officer,in the police inquiry)has arelative discretionary power to determine the collection of evidence through the investigation.In otherwords, the strategy of the investigation is under the police officerʼ
s discretion. Despite that, theprosecutor, throughout the whole investigation, can interfere in this strategy, ordering the police totake specific measures or to obtain further proof.This is explained because the investigation is aimed
to give the prosecutor the information needed to file a charge.
In general, the Brazilian Police does not have a good structure. There are a lot of crimes toinvestigate and little structure. In addition, especially in the State Police, unfortunately it is very
common for police agents to be corrupted.
In general, the investigation is based just on acquiring statements from suspects, victims and key
witnesses,as the primary means of gathering evidence,without the use of new techniques.Sometimes
simple exams are made (as to prove the falsity of a document). In investigations related with drugtrafficking,it is common to see the use of wiretapping.However,the Federal Police has been develop10 In Brazil, public prosecutors have equivalent status as the judges in terms of qualification, salary and guarantees of

independence. Aside from disciplinary proceedings, they cannot be suspended from the performance of their duties
11 Resolution n. 13/2006 can be obtained at: http://www.cnmp.mp.br/portal/images/stories/Normas/Resolucoes/res
cnmp 13 2006 10 02.pdf>.
12 The Brazilian Supreme Court is composed by 11 Justices, divided in two benches composed by five Justices each. In
some cases,the Grand Bench (the eleven Justices together)votes to decide certain aspects,especiallyin important mattersand when there is conflict between decisions among the two benches.

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ing,since 1988,a better structure to investigate and sometimes to use new techniques of investigations.
During the investigation, the interviews of the suspect are, in general, documented in a written
record, signed by the suspect. Generally, it has given the suspect the opportunity to confirm and tocorrect mistakes in the recorded statement.In some cases,the police records on video the interview,togive more reliance on the suspectsʼconfession. To avoid further allegation of coerced confession ―unfortunately still very common in Brazil ― especially during detention,the police sometimes orders
a medical exam, to show that no harm occurred during the interview. According to Brazilian regulation, in all cases the suspectʼs attorney can attend the interview conducted by investigative organizations.
The confession ― documented on paper or on video ― is able to be used as evidence to prove thedefendantsʼguilt.Their statements,however,must be confirmed before the judge.According to article
200 of the Brazilian Criminal Procedure Code,retraction is possible in pre-trial confession.Due to that,
if the confession before the Police is not confirmed in the judicial phase, it will be given little or novalue. In Brazil, no one can be convicted in cases where the only proof against him is his own
confession, according to articles 197 and 158 of the Brazilian Procedural Criminal Code.
In Brazil,the prevalent interpretation nowadays is that any interference with the suspectʼs privacy
requires a warrant. Due to that, warrants are required to search in residences, in enterprises or to
obtain data protected by constitutional secrecy(such as bank records,call logs and telephone communications, the secrecy of correspondence and other fiscal data). Judicial warrants are also necessary toauthorize wiretapping, electronic surveillance, controlled delivery and “
undercover agents”.
Warrants are not required for personal searches,whether the suspect carries weapons or evidence.
Finally, the Police and Prosecutors have access to the data containing personal information, likeaddress, filiation and personal qualification, kept by the Electoral Justice, Banks, Internet Providers,
Telephone Companies and others, without the necessity of a judicial order.
The investigation can last months and even years,until the expiration of the legal term.In certain
periods of time (generally each 30 or 90 days), the Police must ask the prosecutor for an extension of
the investigation. The prosecutor should, in this case, consent to the extension and determine thediligence the police must make during the period.
It is important to mention that the reported crime clearance rate in Brazil is very low,below 10%,and although it is difficult to measure, especially because the data are not reliable, it shows how
inefficient the Brazilian criminal justice system is.Also,the system allows the defendant to indefinitely
postpone the beginning of serving the convictionʼ
s sentence.This and other features give the sensationof impunity throughout Brazilian society, especially in offences like corruption, widely spread insociety. In fact, in the 2012 Corruption Perception Index, Transparency International ranked Brazil
69th of the 174 jurisdictions covered by the index.13 According to Transparency International, somestudies show corruption is now costing upwards of $40 billion each year in Brazil.14
1. Pre-Indictment Detention
Regarding pre-indictment detention, according to the Brazilian Constitution (art. 5o, subsection
LXI), “no one shall be arrested unless in flagrante delicto or by a written and justified order of acompetent judicial authority, save in the cases of military transgression or specific military crime,asdefined in law”.
In this way,the pre-indictment detention occurs,in general,if there is a warrant to arrest,issued bya judge, on the ground of (i) flight risk;(ii) risk of recidivism;(iii) risk that the suspect will destroy
evidence or otherwise affect the investigation of the crime. The pre-indictment detention is only
admitted whether there is probable cause and the crime has,in general,a statutory maximum penalty
of at least 4 years.Pre-trial detention is only admitted if the use of other non-custodial solutions (such13
14

http://cpi.transparency.org/cpi2012/results/>.
http://www.transparency.org/news/feature/brazil one million people demand accountability>.

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as bail,reporting to justice and electronic surveillance,for instance)are insufficient,taking for granted
that pre-trial detention is used as an exceptional measure.Recently the Law 12.403/2011 was enacted,
which changed a lot of aspects of pre-trial detention and changed the Brazilian system, especiallycreating a lot of alternative measures, to avoid, as much as possible, the use of detention.
The request of the detention could be from the prosecutor or the police officers (in this case,passing
by the prosecutor). During the investigation, the judge cannot issue a warrant detention ex officio,
although it is still possible during the trial. The suspect should be listened to, in general, before theexpiration of the warrant, except whether there is risk of ineffectiveness of the measure.In this case,the detainee should present a reply after the detention. In Brazil, there is no detention hearing by thejudge.
However, besides the warrant to arrest, the pre-indictment detention is possible when someone iscaught while perpetrating a crime or immediately after it.In this situation,the offender can be arrested
in flagrante delicto.It is important to mention that,although there is the right to silence,the police does
not warn the detainee about this right in the moment of detention (but just before the interrogation).
In other words, there is no similar warning as the “Miranda warnings”. The police, then, take thedetainee to the police station and book him, although the criminal identification is exceptional.15
After the arrest,the police have 24 hours to obtain the statements of the witnesses and interview thedetainee (custodial interrogation), making a report of the detention (called “record of the flagrantedelictoʼs detention”), to be sent to the judge and the prosecutor.16 This record indicates the circumstances of the prison and the legality of the detention.In some cases (offences with statutory maximum
penalty lower than 4 years),after the report,the Police Officers can release on bail (stationhouse bail).
In the other cases,the arrested will continue to be detained,until the judgeʼ
s decision.The detainee has
the opportunity to be assisted by a lawyer during police interrogation, although it is not mandatory.
According to the Constitution,in case of flagrante delicto,the arrest shall be immediately informed
to the competent judge ― in practice,it occurs in 24 hours by sending a copy of the flagranteʼ
s record
to the judge ― and the illegal arrest shall be immediately remitted by the judicial authority.After thecommunication and if the detainee was not released on bail by the police,the judge may release,withthe use of one or several non-custodial measures. If the detention is necessary, the judge should issue
a warrant to detain ― and the suspect will continue to be detained.
The police or the prosecutor,except in the case of flagrante delicto,cannot detain a suspect without
a judicial warrant, even in cases of urgency.In other words,there is no emergency exception and thepolice should obtain a detention warrant,unless the suspect is committing a crime or has just perpetrated it.
In Brazil, although there is no specific or explicit regulation, the maximum period to detain thesuspect in pre-indictment detention is 10 days in State jurisdiction or 30 days in Federal jurisdiction.In
some grave crimes ― torture, illicit traffic of narcotics and related drugs, as well as terrorism, andcrimes defined as heinous crimes ― the pre-indictment detention could last for 60 days.
B. The Decision to Prosecute
At the end of the police enquiry,the police officer makes a brief and objective report,describing thediligence performed and the evidence obtained, and sends the police enquiry to the Prosecutor. The
prosecutor has, then, three alternatives: (i) dismiss the case, if it is not possible to prosecute (forinstance,where there is no probable cause related to the author of the crime or the materiality or if theoffence is insignificant).The judge can disagree with the non-prosecution decision and,in these cases,
15 According to the Brazilian Constitution,“no one who has undergone civil identification shall be submitted to criminaloidentification,save in the cases provided by law”(Article 5 ,subsection LVIII).The cases that the law allows the criminal
identification are related to non-reliable documents or some types of crimes (as adulteration, fraud or forgery of
documents).
16 In some small offences (with statutory maximum penalty not more than 2 years),the police do not make the report andinterview the witness and the offender, releasing the offender on his or her own recognizance.

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the superior organisms of the Public Prosecutorʼs Office will decide whether or not to prosecute;(ii)demand more investigation by the police;(iii) prosecute,if there is probable cause that an offence wascommitted. In this case,the police enquiry(or the previous investigation)and all the evidence collected
go along with the indictment, during the whole trial.
C. Trial
The trial phase is an adversarial system,where the due process clause and a fair trial are granted
to the defendant, with all the means related. In the first instance,in general,the cases are heard by asingle judge, the same one that oversees the investigation. In other words, the competent judge is thesame, from the beginning of the investigation until the first instance sentence. However, in cases
involving crimes against life, such as homicide, the judgement is before a jury trial, formed by 7 laycitizens and the verdict does not have to be unanimous ― a simple majority is sufficient. It is notpossible to waive the right to a jury trial.
For crimes punishable by imprisonment for less than 2 years,there is a more simplified procedurethat can lead to an agreement between the prosecutor and the suspects (called transaction). In thesecases, if the suspect and his lawyer accept the proposition of a restriction, the case is dismissed.
In general, after the indictment, the procedures at trial begin. There is not a system of pleabargaining in Brazil, where the defendant can plead guilty. There are just two benefits that mitigate
the general rule:the transaction (see above)and the “suspension of the process”.The latter allows theprosecutor to suspend the procedure, from two to four years, and, during that period, the defendant
would be on a type of probation. The prosecutor considers some of these factors concerning thedefendant and the crime:(i) the statutory minimum penalty should not be superior to 1 year;(ii) the
offenderʼs character and the circumstances under which the offence was committed;(iii)the defendantcannot be accused of another crime. If these factors are present, the prosecutor can offer the benefit
and,if the defendant and his lawyer accept,the judge will suspend the process for,in general,two years.
During this period, the defendant submits to some conditions and, in the end, the procedure could bedismissed.Besides that,the Brazilian criminal code does not allow summary procedure even when the
defendant pleads guilty.Even in these cases,all the long and last procedure should be observed and theprosecutor has no discretion in the decision to prosecute.
If there is no suspension,the step-by-step from indictment to sentencing can be described as follows:(i)the judge analyses whether the accusation has probable cause and begins the trial, if so;(ii) after
that,the defendant is summoned and presents an initial written reply,by his lawyer;(iii)on the groundof the defenceʼs response,the judge can summarily acquit the defendant.If not,a hearing is appointed;(iv)on the occasion of these hearings,that are supposed to be unified,the victim,the witness and theexpert witness testify (in general,maximum of eight for each part)and make their statements.After
that, there is the judicial interrogation, when the defendant can remain silent, without any negative
consequence. Then, the prosecutor and the defence should make their closing arguments,orally,in 20
minutes.At the end ofthe hearing,the judge should pass the sentence.This is the basic legal chronology
of a criminal case.
Although this is the legal system, as a matter of fact it is very difficult to have a continuous andunified hearing. It is very common to have two or more hearings,for many reasons (difficulty to findwitnesses, witnesses that do not appear, etc.) and, for that, it is very rare, in practice, to have acontinuous and unified hearing.There usuallyis one hearing for the prosecutorʼ
s witnesses,one hearing
for the defenceʼs witnesses and a final hearing for the judicial interrogation.It is very common,too,forthe prosecutor and the defence to require the judge to change the oral closing arguments for written
allegations and the judge rarely sentences during the hearing. This is due to a very strong written
tradition in Brazil.
The evidence collected during the investigation and the documents prepared by investigators are allreferred to the judge after indictment.As previously said,the police enquiry or the previous investigation and the evidence collected during this stage go along with the indictment. In other words, theprosecutor cannot choose the best evidence appropriate to prove the defendantʼ
s guilt to the court.The
evidence collected during the investigation,exclusively,cannot allow a conviction,although,according69

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to Article 155 of the Brazilian Criminal Procedural, it can be used to reinforce the evidence obtainedin the trial phase.
Although it is not forbidden,the prosecutors in general do not prepare their witnesses before trial,
probably because this may be misunderstood by the judge as an attempt to coerce the witness.
However, the defence lawyers usually prepare their witness before trial.
As said before,if the confession before the police is not confirmed in the judicial phase it should begiven little or no value.As a matter of fact,the judge should analyse the existing proof,to see if thereis evidence to convict.In Brazil,no one can be convicted in cases where the only proof against him is
his own confession, according to articles 197 and 158 of the Brazilian Procedural Criminal Code. In
practice,however,it is common to see the courts admitting the pre-indictment confession with considerable value, although it is rare to convict only on the ground of the pre-indictment confession.
The evidence collected thorough the investigation is, in general, allowed to be submitted to thecourt. The only exception is the exclusionary rule, settled in the Constitution as follows:“
evidenceobtained through illicit means is unacceptable in the process”(Article 5o,subsection LVI).For instance,
evidence obtained with violation of privacy or bank secrecy and coerced confessions cannot be used toconvict. Brazil does not adopt the rule against hearsay and, in fact, it is very common to see police
officers testifying about the suspectʼs confession during the arrest,which is accepted by the case law.
Federal Statute n. 9.807/1999 regulates and organizes the system of victims and witnessesʼprotection (see pages 5-7).The Brazilian Criminal Code (Article 212),to prevent intimidation,authorizes the
adoption of the video conference to hear the witness or the victim. If the required equipment is notavailable,the court may allow the hearing in the absence of the defendant.But the defence lawyer must
always be present.
After the conviction,the defendant will remain at liberty until the final decision,unless there is thenecessity of a warrant detention. The problem is that the parts could appeal on the ground of any
argument and, besides that, there are almost three instances, what makes the beginning of the execution of the sentence very slow.In other words,the postponement of the final decision is very common,
what allows, in a lot of cases, expiration of the statute of limitation and impunity.

III. CONCLUSION
The 1988 Brazilian Constitution structures our criminal justice system in a reasonable way. In
practice,however,it does not work properly.Many different reasons have been pointed out to explain
the problem,such as:(i)lack of governmental investment in building and maintaining prisons (building
schools and hospitals is more appealing to voters, convicted people do not have the right to vote andtemporary prisoners encounter many difficulties to vote);(ii)political influence over the high ranks of
the Judiciary;(iii)an obsolete 1941 Code of Criminal Procedure, edited in a dictatorship and inspiredby the fascist Italian Code of Criminal Procedure of 1930;(iv) absence of a systematic regulation on
juridical international cooperation.
Nonetheless, there is hope. Brazil is receiving international pressure to improve conditions in theprisons,temporary prisoners were recently allowed to vote,important Brazilian politicians have been
convicted of corruption in the recent M ensalao scandal, drafts of a new Code of Criminal Procedure
and a Juridical International Cooperation Act are under discussion and many sparse federal rules,andthe 1988 Constitution itself,have changed the essence of the 1941 Code of Criminal Procedure.Recently,
as a result of popular demands to combat corruption, Law 12.850, of August 3, 2013, was enacted,
aiming to regulate the new techniques of investigation to combat organized crime.

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