A ampliação dos espaços de consenso no processo penal e o papel da investigação defensiva como fator de legitimação dos acordos sobre a sentença

Abstract

The purpose of this article is to analyze the expansion of negotiated justice in Brazil considering the legislative proposals foreseen in the draft new code of criminal procedure and, in its original form, in the Anticrime Package, about the possibility of concluding an agreement on judgment at the beginning of criminal proceedings. Through the accusation, the accused renounces the procedural instruction and, on the other hand, a supposedly milder penalty is immediately imposed on him. Initially, the reasons for the growing appreciation of consensus-based solutions will be analyzed. Subsequently, the repercussions of the implementation of the agreement on due process of law and especially on procedural equality and the presumption of innocence will be critically explained. Later, the American Institute of Plea Bargain, which inspired the institutionalization of the agreement in Brazil, will be addressed, as well as the issue of mass incarceration. Afterwards, the notion of defensive investigation will be examined. Once this is done, there will be sufficient conditions to conclude that the agreement on the criminal sentence leads to an overvaluation of the elements gathered in the preliminary investigations, suppressing due process, and the importance of ensuring a more active participation for the defense from the outset. police inquiry for the purpose of legitimizing the criminal agreement.