A cadeia de custódia da prova no contexo do cumprimento de mandado de busca e apreensão: preservação das garantias constitucionais individuais

Abstract

The purpose of this work is to analyze the practical-legal repercussions of the modifications brought by the Anti-Crime Law with regards to the procedure of the chain of custody of evidence, discussing its applicability in the context of executing Search and Seizure Warrants. Given that, nowadays, the production of evidence not only involves the physical realm but also the digital one, this paper aims to explore the peculiarities of digital evidence and its seizure, highlighting the necessity to also apply, in this scenario, the rules related to the preservation of the chain of custody of evidence. Additionally, this study seeks to explore the consequences of breaching the chain of custody of evidence. Initially, some reflections will be made on the evidence in the Brazilian criminal procedure, covering conceptual definitions until reaching the concept of digital evidence. Subsequently, the legal instrument of search and seizure will be addressed, with an emphasis on home searches, highlighting their characteristics and peculiarities. Later, the chain of custody of evidence and the innovations brought by the Anti-Crime Package will be discussed, as well as it’s applicability in the context of executing a search and seizure warrant. Finally, the consequences of violating the chain of custody, also known as breaking, will be addressed, highlighting doctrinal and jurisprudential issues on the matter.