A cadeia de custódia da prova digital no processo penal brasileiro

Abstract

The technological innovations has been changed the way people relate socially, store intimate and private data, exchange information and communicate, all of it potentialized in the virtual environment. In the same way, the investigation method has evolved and adapted aiming to corroborate interesting elements to the process. In this sense, it is intended to discuss the means of obtaining the digital evidence consistent in telephonic communication interception, telematic communication interception, breach of confidentiality of telephonic and telematic data, specifically with what concern the need or not for judicial authorization to adopt invasive measures and legal, doctrinal and jurisprudential requirements, therefore. In continuity, given the characteristics of digital evidence and the public agents contact with the evidence`s source or the evidence itself, the need to adopt mechanisms that prevent the digital traces, through a methodology that guarantees reliability of the evidence to be later presented in court. Thus understood, above all, the preservation of custody chain of the digital evidence with emphasis on situations of flagrante delicto and execution of search and seizure warrant, in cases of physical contact with the device that stores data and through remote access to data. In this construction, in the end, despite legislative omission, the possible consequences about breaking the custody chain of evidence are discussed.