Provas ilícitas: análise da limitação probatória como garantia constitucional em face à busca pelo punitivismo estatal

Abstract

The function of the evidence is verified in demonstrating facts relevant to the process for the formation of the conviction of the magistrate, nevertheless the probative activity has a seal when its production advier of illegal form. The work begins with a brief historical review of the concepts, origins and characteristics of the evidence within the process, and then proceeding to analyze the evidential function in the inquisitive, accusatory and mixed procedural systems, as well as the regulatory principles. Next, the text demonstrates the relation of the search for the real truth in the criminal process and inadmissibility of the illicit evidence, approaching the derivation theories, from where derives the theory of the fruits of the poisoned tree; theory of proportionality, and use of unlawful evidence pro reo and pro societate. Finally, the social demand for the state's punitivism is shown, relativizing the inadmissibility of the evidence, as well as observing its effects from the constitutional point of view.