Judge wants ‘revolution’, starting with reversal of the burden of proof!

Judge wants ‘revolution’, starting with reversal of the burden of proof!
Judge wants ‘revolution’, starting with reversal of the burden of proof!

The subtitle could be: Epistemic denialism reaches the criminal process: where did we go wrong? Is there any chance of this one day working? no don’t answer.

Then they say it’s my bummer. Well, read it in your own words.

In video format “reels” Transcribed below, federal judge holding criminal court in the state of Rio de Janeiro, with almost 12 thousand followers, suggests what three changes would be “that would revolutionize the Brazilian criminal system” (sic).

Well, each person is responsible for what he says and for whom he captivates or detracts. Charges and bonuses. So.

In the video, recorded interspersed with books — the setting is perfect — the magistrate suggests the following “revolutionary changes”:

First: limitation to the scope we give to the principle of presumption of innocence, a subject on which the magistrate says she does not want to “extend herself”, as she wants to tell her followers what the “real changes” would be. Something along the lines of: What an old thing to talk about limiting the presumption of innocence, this is an outdated issue among us, ”scholars” and ”updated” proceduralists. What ruined everything was this last decision of the Supreme [1];

Second: reversal of the burden of proof in corruption crimes in the public sectoraccompanied in the video by a meme of a lady saying “My God…”, about which the magistrate asks: “Were you scandalized? Excellent. I think it’s important to question our beliefs that can be limiting” (sic). I say: maybe there the linguistic resource of meme really make some sense. But the doctor makes fun of those who are “scandalized” by the lack of respect for procedural guarantees, as if a fundamental right could be equated with a (pre)supposed “limiting belief” (sic); and, as if that weren’t enough, finally:

Third: Ending the Right to Lie (sic). The judge asks, in the greatest “amazed, Your Excellency” style: “Did you know that in Brazil the defendant has the right to lie?!” And she talks about how much better it would be for the fight against crime if the defendants were only supported by the right to silence and the “privilege” (sic) of non-self-incrimination. According to her, these rights “would already be sufficient to ensure the inherent rights of defense, exactly as in the United States of America.” Well, I needed to explain how this works in Brazil. It doesn’t seem like a judge should make this kind of statement — making the lay population believe that the procedural-constitutional right to non-self-incrimination/right to silence boils down to a “privileged” right to lie

By the way, as for “lying”: for the judge, denying authorship is lying? What is a lie in procedural terms? Shall we elaborate an “epistemology of the lie”? A judge accused by the CNJ of having made a certain statement or committing malfeasance, a prosecutor accused of misdistributing daily allowances and things like that: saying that the accusation is absurd or saying that he is innocent and that the accusation is a lie (when it is not ), is there a lie there? To say that he is innocent, that the fact is not true… is what? Lie?

The judge’s video is a “classic” example of a crisis in the teaching and study of law that I have been denouncing for decades. This was another one, but it is especially serious, as it deals with a federal magistrate, with a high degree. I ask myself: how did we get here? Not only did graduate studies fail, but before that comes legal education in the banks of law schools. What is being taught in colleges instead of criminal proceedings? The other day I saw law students saying that this Constitution brought “too many rights”.

In the video, in addition to the position of federal judge, the magistrate presents herself, to justify the proposals and her knowledge of the matter, as a doctor in process. I don’t know if any Brazilian doctorate teaches the reversal of the burden of proof, for example.

The magistrate asks us not to be scandalized by a suggestion such as “reversal of the burden of proof for crimes committed in the public sector”.

No, I’m not scandalized. In Brazil, procedural guarantees are seen as “privileges” (are lifetime guarantees, irremovability and irreducibility of salaries also privileges?).

As if the Constitution were not a Bill of Rights and were not a shield against the giant-state. Someone with a degree in law — especially judges and professors — who renege on constitutional guarantees are like doctors who reject antibiotics and vaccines. I speak of antibiotics, because these have not yet entered the denialist crusade, such as vaccines and chloroquine, which, to the horror of science, are no longer unanimous even among doctors.

Epistemic denialism is on the rise. It is the triumph of Know Nothing (Know None) denounced in dystopia After Virtueby Alasdair MacIntyre (about which I’ve talked so much).

And the right? What to say to someone who proposes to reverse the burden of proof, who is against the presumption of innocence and wants to limit the inherent rights to the interrogation of the accused, reducing him to a vulgar “right to lie”? And what is this story about pondering the “values ​​at stake”? Who decides this criterion? Where are these values ​​in the constitutional text? What are values? Worse: in the video she treats weighting from the classic “balance” with one hand up and the other down, as if Alexy (to speak of this author) once said that this is how one weights.

The magistrate “justifies” that these changes are already commonplace in countries “more developed than Brazil”. Where do they shift the burden of proof? She cites India, South Korea and Singapore. Well, I don’t even want to talk about India’s procedural system. I only remember that Singapore whips people.

Using the “principle of charity” (in the sense of Davidson and Blackburn), let us analyze the social reality of developed countries (England? Germany? USA?). And the procedural guarantees given to citizens who are defendants in these nations. See the chain of custody of the evidence. And more: the prison situation in these countries, may I help? Is there any way to compare eggs with an egg carton, as Bobbio would ask?

For that is what it is all about when trying to bring criminal procedural institutes from other contexts and traditions to our reality. Well, we know that, at least in the US, it’s not quite what she says. Not to mention Germany and the like. Regarding the right to silence, how can it be categorically stated that the defendant lying in order not to incriminate himself in court is a “delay”? And what is lying? Yes, I know how it works in the US. But I don’t need to explain here. The burden of proof is not mine.

Defending clearly unconstitutional “revolutionary proposals” does not serve us, or rather, it may even serve someone, but certainly not the constituent pact signed in 1988. Moro tried to do this with the proposed Ten Measures proposal.

Therefore, I issue an epistemic challenge to the magistrate so that she can enlighten us with a list of countries that reverse the burden of proof, for example. And that this could be done in Brazil. Unless, here, she also wants to reverse the burden of proof and says that I am the one who should find out which countries reverse the burden or not, if the irony is allowed.

So, in a cordial response — as is my way — to the aforementioned magistrate and doctor in process, I propose a fourth revolutionary change for the Brazilian criminal system (especially for judges) to replace its three:

I propose compliance with the Constitution — in its entirety, including all guarantees — as a revolutionary attitude.

The challenge is out.

Finally: it is not easy to do theory of law and procedural theories in Brazil. Just when we think we’ve advanced a step, someone comes along, with training in process and public authority, preaching obscurantism. Sorry for my bluntness.

post script: And speaking of Theory of Law, one of the dinosaurs of critical legal theory, Carlos Cárcova, died in Buenos Aires. Teacher of generations. For those who didn’t know him or his works, I recommend looking on the internet. He was part of the Cainan Group. Doctor Honoris Causa by UFPR. He left many Friends. around the world.

My condolences to dear Alicia Ruiz, another great jurist!


[1] For those who don’t remember, after many struggles and countless actions – one of them by us – in 2019, by a very tight majority of 6 votes to 5, the Federal Supreme Court declared article 283 of the Criminal Procedure Code constitutional, ending (for or) the question of the presumption of innocence in the country. But, looking at the judge’s video, there are many magistrates, MPs and politicians who have not yet accepted this decision. And worse: many people who advocate are against the presumption of innocence. It is reported that this number reaches 60% (I explain this in several texts published here in ConJur).

Lenio Luiz Streck is a jurist, professor of Constitutional Law, post-doctoral fellow in Law and partner at Streck e Trindade Advogados Associados.


The article is in Portuguese

Tags: Judge revolution starting reversal burden proof

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