A MITIGAÇÃO DA NULIDADE PELO USO DE PROVAS ILÍCITAS NO PROCESSO PENAL BRASILEIRO

Abstract

The Brazilian legal system imposes the due legal process through the adversary system and full defense, to everyone who commits a typical, unlawful and culpable fact, in order to have a fair reprimand for the offense caused, in the proportionality of the damage caused. This is what is called state jus puniend and it is the power and duty of the state to pursue the crime and punish it correctly, according to the case series that occurred. Therefore, it is essential that the court has sufficient evidence in its hands to prove the materiality of the criminal act, as well as the authorship of the conduct. And from this perspective, it appears that the evidentiary part in a process is not always a simple task, even because there are stains that can affect the procedural evidence, invalidating them in such a way that they become useless. Thus, this bibliographical research aimed to awaken the reader to the importance of maturing the theme: admissibility of illegal evidence in the Brazilian legal system, so that it can be demonstrated that no constitutional guarantee is absolute when in conflict with another. Seeking to demonstrate what types of nullity the evidence in a criminal case can suffer, and when it is possible to use this evidential content, even if there is illegality. As a result, it was found that today, despite the constitutional prohibition on the use of illegal evidence, there is today on the part of the Superior Courts, a true relaxation of the principled command, especially when it comes to a unique and unequivocal means of demonstrating the innocence or non-guilty of a defendant, using another principled command called In dubio Pro Reo, which is only given by weighting.