A produção e valoração indireta da prova em vídeo no processo penal: uma abordagem empírica e epistemológica

Abstract

Assuming the profusion of technological resources capable of recording and the ubiquity of imagery, this research intended to investigate the phenomenon of judicial valuation of video evidence in criminal proceedings, from an empirical and epistemological perspective. For this purpose, guarantist and rationalist assumptions were adopted, directing the knowledge of the approximate truth of facts, in a correspondent perspective with the empirical world, but aware of the intrinsic limitations of a jurisdictional system that vetoes decisionism and arbitrariness. So, the main objective was to investigate the particulars of video evidence, analyzing it in a critical and epistemic approach, to seek contributions that enable to rationalize the valuation of the video evidence; as well, to execute empirical documentary research that analyzes how the judges of the Court of Justice of the State of Minas Gerais (TJMG) value the video in the context of criminal proceedings, to confirm whether the production occurs predominantly indirectly. In preliminary analyses, it was verified a tendency to indirectly value the video. That is, without watching it through their own senses, judges cognize its content through intermediary evidentiary means, like testimonies, expert witness, transcripts. In order to examine this condition, the theoretical framework of Silbey (2008) was established: the camera always presents a certain point of view and a frame that includes some images and excludes others. Thus, the following problem was presented, approached from the literature review: is the indirect production and valuation of video evidence in criminal proceedings desirable from an epistemological point of view? And more, are guarantees of the accused violated? From the examination of image characteristics, such as fluid, emotional, subjective, and non-linear proof (PORTER, 2014, p. 1753), in addition to being fragile digital evidence, subject to mutability, it has been shown that the indirect production and valuation of video are not epistemologically desirable, as it is subject to the risk of error, contamination of perspective, insincerity, alteration of content, among others. Furthermore, were verified possible violations of the right of contradictory, of full defense, and the right to confrontation. The empirical research was developed by mixed methods research, analyzing quantitatively and qualitatively, in an integrative perspective, criminal judgments decided in 2019 by the TJMG that contain, at the same time, the terms evidence and video. Quantitatively, the objective was to verify whether the phenomenon of indirect valuation of video evidence occurs in reality and which is the most frequent intermediary medium of proof. It was verified that the occurrence of indirect valuation of the video was presented in 80.13% of judgments, with testimony being the most frequent means of evidence that reveals the content of video evidence. Qualitatively, the objective was to investigate whether the judicial valuation of the image considers its peculiarities. It was also verified a non-uniformity in the decisions, finding that many verdicts demonstrated a naïve treatment of the film, as a transporter of the real truth of the facts, along with some judgments that consider the characteristics of the image, mainly to its quality. However, it was concluded that there is a predominance of valuations that treat the video intuitively, without rationally indicating its features. There is, therefore, a need for visual literacy of legal agents and jurists, to achieve a rational valuation in search of approximate, verifiable, and reliable truth.