Sistema acusatório : a (in) constitucionalidade da produção de prova de ofício pelo juiz.

Abstract

This monograph that now is submitted is about the (un) constitutionality of the production craft of evidence by the magistrate before the adversarial system, which is adopted in Brazil since the 1988 Federal Constitution, with the absolute distinction between function of the accuser, defender and judgmental organ. However, there are those who understand that such procedural system is not absolute, mentioning also the Inquisitive system, where the functions of each organ are confused. Thus, faced with such different legal positions, each procedural system will be analyzed as well as its effects in the current Criminal Procedure, in line with the Federal Constitution of 1988, seeking to investigate also the existing devices in the Criminal Procedure Code and its appropriateness with the Federal Constitution, as the said Federal Law was published in 1941, before the current Constitution of 1988, which adopted the adversarial system. Aimed at verifying the (un) constitutionality of the craft of taking evidence and other actions taken by the magistrate before the adversarial system. Therefore, the comparative method was adopted because it aims to ascertain the differences between criminal procedural systems, as well as the influence of each of the legal world and its (un) constitutionality. It will also be used the described method, which will be developed through a concept of fundamental rights and guarantees of the human being, guaranteed in the Federal Constitution of 1988 as well as the deductive, that through a general appreciation of the theme can get to the concrete case. Through the following questions: What is the difference between the criminal procedures systems? Which are its practical implications? How is the production of evidence in the current adversarial system? Can the judge produce craft proof? Would it be constitutional? What other acts which, if committed by the magistrate, in addition to producing evidence, would hurt the adversarial system?