Standards probatórios para a admissibilidade da prova digital no direito processual civil brasileiro

Abstract

The present work views evidence as the construction of knowledge within the scope of judicial proceedings. To this end, it is argued that such knowledge, under the lens of epistemology, seeks to demonstrate the correspondence between factual statements and truth, the latter being, in its purest form, absolute. However, the absoluteness of truth should not be conflated with the probabilistic and relative nature of this knowledge, that is, evidence. Furthermore, the hypothesis guiding this research reflects a shift in how we communicate and record life events, which, in turn, has impacted how knowledge is generated and obtained/extracted. In this context, digital evidence emerges, originating in a virtual (immaterial) environment or being transported into it. Given the volatile nature of digital evidence, which can be imperceptibly manipulated to the naked eye, the following methodological problem arises how to ensure a minimum level of reliability of such evidence when admitted into judicial proceedings. Thus, the general objective of this study is to analyze procedural institutes and instruments capable of ensuring, in probabilistic terms, a minimum level of reliability for digital evidence to be admitted into judicial proceedings. Accordingly, evidentiary standards were identified as a potential solution to the presented problem, as they harmonize the highly dynamic nature of technology, the intrinsically probabilistic character of evidentiary reasoning, and the indispensable definition of a threshold in the admissibility framework, allowing this immaterial element to be considered minimally reliable. Additionally, it was found that the current criteria for the admissibility of evidence in Civil Procedural Law are insufficient to address the technological and highly mutable nature of digital evidence. Through evidentiary standards, it is argued that when admitting an immaterial element into proceedings, the methodology used in its collection should be demonstrated, and these methods should be testable or falsifiable through existing and technologically valid knowledge. This research identified the somewhat overlooked Incidente de Assunção de Competência (Incident of Assumption of Competence) as a viable mechanism for establishing these standards, as it is a procedural tool designed to standardize the interpretation of relevant legal issues with significant social impact. This instrument allows higher courts to decide specific issues, creating binding precedents to guide future decisions. Concerning the admissibility of digital evidence, the Incidente de Assunção de Competência is seen as a mechanism with virtues for establishing clear parameters for the collection, preservation, and analysis of these immaterial elements. This ensures that the methods used are technically demonstrable and verifiable, promoting a more secure procedural system aligned with technological innovations.