THE EFFECTIVE COLLECTION AND UTILIZATION OF EVIDENCE IN
CRIMINAL CASES:CURRENT SITUATION AND CHALLENGES IN
BRAZIL
Andrey Borges de Mendonça

I. INTRODUCTION
The Brazilian Constitution of 19881 grants express rights to defendants, especially in the case ofarrest.This is due to its publication after a dictatorship period (1964-1984),when several cases ofabuses
and torture of detainees occurred.Paradoxically,the State use of violence against civilians in the 60s,
70s and 80s led later to the recognition of numerous fundamental guarantees. In fact, the dictatorial
experience still influences the Brazilian case law.
The 1941 Code of Criminal Procedure is the basic law regulating the criminal procedure in Brazil.
Published during a previous dictatorship period (1937-1945), the Code was originally inspired by thefascist Italian Code of Criminal Procedure (1930)2 and has been amended by several laws and constitutions.
The 1988 Constitution and the 1941 Code of Criminal Procedure discipline the collection andutilization of evidence in criminal cases,being complemented by other thematic and sparse rules.It is
important to mention that on August 2,2013 the new Organized Crime Act (Federal Statute n.12.850/
2013) was enacted. This law, besides providing the definition and punishment of organized crime,
regulates the special techniques of investigation to prevent and to investigate such crimes.

II. COLLECTION AND UTILIZATION OF EVIDENCE IN CRIMINAL CASES
A. Effective Investigation M ethods for Acquiring Statements
1. Interrogation of Suspects
In Brazil, the right to remain silent is a constitutional guarantee: “the arrested person shall be
informed of their rights, among which the right to remain silent”(1988 Constitution, Article 5.LXIII).
Therefore the interrogation of a suspect or a defendant is not preceded by any oath.M oreover,there
is no punishment even in the case of a proven lie. Despite the reference to the “arrested person”,it isunanimously accepted that any suspect or defendant,whether or not arrested,has the right to remainsilent.The Code of Criminal Procedure adds that silence may not be valued in prejudice of the defence;in other words, presumptions against suspects who refuse to testify are explicitly prohibited (Article
186).In synthesis,there are virtually no legal limits to the right to remain silent.In fact,if the suspect
or defendant prefers, they are allowed not to show up for questioning, according to the majority ofBrazilian judges. There is an exception created by the new Organized Crime Act (Federal Statuten. 12.850/2013),which says that the defendant who makes an agreement with the prosecutor must waive
his right to be silent and has to tell the truth.
In general the suspects are initially interrogated by the Police and, in practice, are usually notwarned of their right to remain silent at that time. Their statements, however, must be confirmed
before the judge,after the warning (that is truly made by some judges,whereas others limit themselves
Federal Prosecutor, Federal Public Prosecution Service of Brazil. The author would like to thank M arcela Harumi
Takahashi Pereira for her assistance in co-authoring this paper.
1Camara dos Deputados, http://bd.camara.gov.br/bd/bitstream/handle/bdcamara/1344/constituicao ingles 3ed.pdf?
sequence=7>accessed 29 June 2013 (English version).
2Presidencia da Republica, http://www.planalto.gov.br/ccivil 03/decreto-lei/del3689.htm>accessed 29 June 2013.At thesame website, there is a complete database of Brazilian rules.

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to issue the warning on paper,but do not really care to do it).If the confession before the Police is notconfirmed in the judicial phase, it will be given little or no value; if the judge forgets to alert thedefendant about their right to remain silent, an eventual confession will be void.In any case,there isno need of a warning at the moment of detention, but only at the beginning of the hearing.
While the assistance of a lawyer is mandatory during judicial interrogation, it depends upon thesuspectʼ
s choice in the case of interrogation by the Police. Unfortunately, those who cannot afford
paying will be given no assistance during the investigation by the Police and poor assistance during the
judicial process.
Enhanced techniques to obtain confessions,such as torture or the administration of truth serum,are
not officially accepted in Brazil. According to the Article 5.III of the Brazilian Constitution, “no one
shall be submitted to torture or to inhuman or degrading treatment”. However, torture by the Police
is sometimes reported by suspects.
2. Interrogation of Victims and Key Witness
Everyone may be a witness in Brazil.Since 2008,victims and witnesses are cross-examined by boththe public prosecution and the defence, and then the judge may formulate complementary questions.3
Although called “cross-examination system”, it is not allowed in Brazil to the party who called thewitness to make an examination in chief, after the other party cross examination. Before 2008, there
was a different sequence and method. The judge would interrogate the victim or the witness, andafterwards the public prosecution and the defence were allowed to direct questions to the judge,who
would reformulate and redirect the questions to the victim or the witness.Except for judicial mediation,
the old procedure is still adopted during the interrogation of the defendant.
As in the interrogation of a suspect or a defendant,the enquiring of a victim is not preceded by any
oath,and they are not punished merely because of lying.On the other hand,witnesses testifyunder oathcommit perjury if they do not tell everything they know about the investigated facts. There are,however, some exceptions to the obligation to testify, such as professional confidentiality.
Attending the hearing is mandatory for both victim and witness. If either of them does not attend
the hearing, the judge may conduct them to the court manu militari. The difference, as above
mentioned,is that the witness will be criminally punished merely by lying or remaining silent,while thevictim will not.
In general, a witness or a victim must testify in the presence of the defendant. But to prevent
intimidation,it is possible to use the video-conference system.If the required equipment isnʼt available,
the court may allow the hearing in the absence of the defendant.But the defence lawyer must always
be present.
B. M ethods to Facilitate Testifying at Trial by Protecting Witnesses, Victims and Suspects
If the witness or victim is at risk due to their collaboration in a criminal investigation or procedure,
it is possible to admit them in a protective programme (there is one federal programme and there aremany State protective programmes). The protective programmes were officially implemented in 1999
and are organized by the civil society in cooperation with the government. As many witnesses are inneed of protection because of threats made by police officersʼgroups,the collaboration of civil society
has been reinforced and is important to guarantee that the system operates well.The increase in civilsocietyʼs responsibilities may be considered a good practice. The State, however, coordinates andfinances the programmes of protection.
Federal Statute n. 9.807/1999 regulates and organizes the system of victims and witnessesʼprotection.Some protective measures that maybe adopted are(Article 7):(i)securityin the habitual residenceof the witness or victim;(ii)new residence or temporary accommodation in a location compatible withthe protection; (iii) preservation of identity, image and personal data; (iv) monthly stipendium toprovide a livelihood to the individual and family,if the protected person is unable to perform regular
3It is not allowed, in general, for witnesses to give their mere opinion, and the parties cannot ask leading questions.

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work or lacks any source of income;(v)temporary suspension of functional activities,without loss ofwages or benefits when the protected person is a public or military official;(vi) social, medical andpsychological care. In exceptional cases the person under protection may change their full name andassume a new civil identity. Up to now, such change has happened in five cases.
But the system of protection does not have sufficient resources.In 2003 the budget of the Brazilian
system was about four million dollars.The accommodations and facilities offered to the witnesses andvictims are precarious.In consequence,the usual witness in the case of a federal offence,who is either
rich or middle class, does not accept being admitted to the programme of protection.
There is also a leniency programme in Brazil.The Witnesses and Victims Protection Act (Federal
Statute n.9.807/1999)grants some benefits to the cooperative defendants,such as remission.Additional
thematic rules also provide for leniency agreements, especially the Organized Crime Control Act andthe Money Laundering Control Act.
Until the New Organized Crime Act,there was no regulation of the procedure in these cases,which
was appointed as a flaw in the legislation.However,this new law now regulates the agreement between
the defendant and the prosecutor, when that one gives important information to the investigation orprosecution of the crimes or information about the other offenders.The new Act,accepting a practicethat was developed in the case law,made a broad regulation of this new technique,especially regulating the procedure of the agreement.
The new law imposes a written assignment between the parts and gives to the informant a rangeof benefits,like judicial pardon,diminution of the penalty,suspension of prosecution,and others.The
judge will not be part of the agreement and will just supervise the legality of the agreement. If theinformer is not the leader of the organization and gives, first hand, an effective contribution, theProsecutor can dismiss the charges against him. According to the new law, the informant must wave
his right to be in silent and has the duty to tell the truth.It will be a difficult task to carry out this dutywith the idea that the informant cannot be persecuted if he doesnʼ
t tell the truth.
In any case, the judge cannot convict anyone based just on the word of an informant, and it isnecessary to confirm the defendantʼ
s information with other elements (the corroboration rule). The
prosecutor must have sufficient additional information to convince the judge, and the defendants
cannot be found guilty solely on the basis of an informantʼs declaration.
C. The Utilization of Special Investigation Techniques
The utilization of special investigation techniques is not yet so common in Brazil.This was due tothe absence of a systematic regulation on the matter.The special investigation techniquesʼregulation
was sparse and interspersed in various federal statutes,such as the Organized Crime Control Act andthe Drug Control Act. However, the New Organized Crime Act was enacted, aiming to change this
scenario.As an exception,wiretapping is regulated bythe Wiretapping Act and its practice is frequent.
1. Electronic Surveillance
Wiretapping is the most usual special investigation technique involving electronic surveillance.It isregulated by the Federal Statute n. 9.296/1996 and the Constitution, that states: “the secrecy ofcorrespondence and of telegraphic communication, data and telephonic communication is inviolable,
except, in the latter case, by court order, in the cases and in the manner prescribed by law for the
purposes of criminal investigation or criminal procedural finding of facts”(Article 5.XII).Therefore acourt order is a constitutional requisite.The Federal Statute n.9.296/1996(Wiretapping Act)adds threeother requisites: (i) the investigated crime should be punished with reclusion ― wiretapping is notallowed in the case of misdemeanors and offences punished with detention;(ii)there must be no otherway to collect the evidence;(iii)there must be a reasonable indication of authorship or participation
in a criminal offence(probable cause).The wiretapping can last for 15 days at maximum,but the judge
may authorize a prorogation if necessary. The Federal Statute n. 9.296/1996 (Wiretapping Act) also
applies to electronic communications (e-mail wiretapping).
The new Organized Crime Act (Federal Statute n. 12.850/2013) authorizes the registration of60

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environmental electromagnetic signals, both optical and acoustic (bugging), in the investigation concerning an organized criminal group.
The use of GPS is not regulated in Brazil and there is a debate about whether a judicial authorization (court order)would be required in this case.
2. Undercover Operations
The old Organized Crime Act and the Drug Control Act (Federal Statute n.11.343/2008,article 53.I)
authorized the utilization of “undercover agents, but there was not enough regulation of the matter.
However, the new Organized Crime Act wants to change that.
The new Organized Crime Control Act regulates the “undercover agent”broadly.It depends,in allcases,on the judgeʼ
s decision and itʼs authorized just for police officers.In other words,itʼ
s not possible
for an informant to act as an undercover agent.The requirement to begin an undercover investigation
should expose the necessity of the measure,tasks which the agent will do and,when possible,the namesof the people who are investigated and the places where the infiltration will occur.
The undercover agent,as a drastic and dangerous measure,should be used just ifthe other measures
to obtain evidence are insufficient. The infiltration can last for six months, but can be extended if
necessary.At the end of each six months,the agent should make a detailed report and inform the judge
and the Prosecutor. However, at any time, the prosecutor can demand more information about themeasure. Regarding the limits of the undercover agent, if he commits a crime, he cannot be punished
if another conduct isnʼt expected. Otherwise he can be punished if he acts beyond reasonable limits.
After the charge, the reports made by the undercover agent should be available to the defence
lawyer,but preserving the agentʼs identification.The agent has the right to change his name,according
to Law 9807/99, and his image and voice should be preserved during the trial,although the agent has
to testify in court.Besides that,the agent cannot be photographed or filmed by the media without his
consent.
3. Controlled Delivery
The former Organized Crime Control Act (Article 2.II)and the Drug Control Act (Federal Statuten. 11.343/2008, Article 53.II) allowed the realization of controlled delivery, which is a technique of
frequent use in the investigation of drug trafficking. The Drug Control Act demands a court order,
whereas the former Organized Crime Control Act was silent about it
The new Organized Crime Control Act regulates “controlled delivery”. According to the new law,itʼ
s possible to retard the administrative or police intervention to obtain more evidence of the crime.
Itʼs requested that the offender must be supervised from the beginning until the end of the proceeding,to avoid escaping.The judge should be advised and,if necessary,he should authorize the limits of the“controlled delivery”and, then, communicate with the Prosecutor. In a case involving two countries,“controlled delivered”with the cooperation of both authorities is allowed if the itinerary of the person
is known.
The new law is unclear on which cases will or will not require a court order and,certainly,this issue
will be a point of discussion in the case law. It is also unclear what the police should do in case of
emergency, when it is not possible to communicate with the judge.
4. Personal Data
The new Organized Crime law grants access to Police and Prosecutors to the data containing
personal information, like address, filiation and personal qualification, kept by the Electoral Justice,banks, internet providers, telephone companies and others, without the necessity of a judicial order.
Furthermore,the transportation enterprises should grant to the Police and Prosecutors the informationof reservations and travels registration for the last five years. Finally, the telephone records should
also be granted to the Police and the Prosecutor, and the telephone companies should preserve theserecords for at least five years.

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Access to bank records requires a judicial warrant. Regarding this matter, it is important tomention ― and can be described as a good practice in Brazil ― the system developed by the Federal
Prosecutors Office called the Bank M ovements System (SIMBA),which aims to obtain the bank data
in a standardized format.In other words,the model establishes a standard model for receiving data andanalysing large volumes of financial records. In this new process, all the banks send the data via asecure system and in a standardized electronic format to the Research and Analysis Branch of the
Public ProsecutorsʼOffice, after the judicial decision was granted. When the information is received,
within generally two months, the programme already has issued five types of reports that help theProsecutor to analyse the information.The programme was granted to all investigation agencies andis now used in most of the cases of bank secrecy in Brazil.

III. CONCLUSION
Besides the points already mentioned, there are some underlying problems with regard to theinvestigation practice in Brazil. The Brazilian system is still very inefficient in collecting evidence,
especially in white collar criminal cases. About 8% of the crimes committed are effectively punished.
The panorama is worse in complex crimes. According to The Financial Action Task Force Mutual
Evaluation of Brazil (June 25,2010),after more than 10 years of the criminalization of money laundering, Brazil had significantly enhanced its ability to prosecute this crime, but there were only 11 final
condemnations.4 In other words, money laundering generally remains unpunished. Among other reasons, this is because the Police still rely on traditional techniques to investigate,even in complex andwhite collar crimes.
Until recently, there was no comprehensive legal regulation about the special investigation techniques.The New Organized Crime Act is aimed to change the panorama.This new law provides somenew special techniques to investigate organized crime that can help to obtain evidence and allow theState to punish these offenders properly and efficiently.However,the enforcement of this new law will
depend especially on the case law interpretation, trying to bring efficiency without disregarding theinterests of the suspect/defendant.
Also, the police officers are not well trained and do not count on sufficient resources and devices
to make use of the especial techniques. Some possible measures to foster an efficient system ofcollecting evidence, especially in complex crimes, are: (i) use properly and efficiently all the newinvestigation techniques;(ii)to provide training and equipment to the law enforcement agents;(iii)toallow the prosecutors to propose nolo contendere agreements to the suspect or defendant, even in thecase of serious crimes.
Brazil needs to assure better protection for witnesses and victims,and more precisely:(i)to provide
appropriate financing and organizational structure to the Witness Protection Program;(ii)to facilitate
the change of their civil identity;(iii)to allow the international relocation of the protected witness or
victim.
Finally, it is important to find a balance:nowadays there is an excessive judicial tolerance in theinterpretation and application of the law in order to make up for the cruelty and deficiency of thecriminal system in practice, inter alia. This posture propitiates impunity. Disregarding the public
interest is not a legitimate way to deal with the frequent violation of fundamental guarantees ofsuspects, defendants and convicted people.

4GAFI. Mutual

Evaluation Report Anti-Money Laundering and Combating the Financing of Terrorism. Federative
Republic of Brazil, 2010, p. 35. http://www.fatf-gafi.org/dataoecd/13/50/45800700.pdf>.

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