Jury trial perspectives in Brazil
Professor Rodrigo Faucz Pereira e Silva
Faucz, Santos & Advogados Associados,Curitiba
Trial by jury has been present in the Brazilian legal system since 1822. Existing for nearly 200 years, it has been used to try press criminal cases in general and civil cases. However, the jury has consolidated its jurisdiction to prosecute only intentional crimes against life (under Brazilian law: murder, instigation of suicide, and abortion). Judgment by community members is at the heart of social participation in the judiciary system; it constitutes a relevant citizenship service and removes the eminently technical character for judging sensitive crimes.
The procedural part of the Brazilian jury system differs from the United States jury system not only in terms of competence, but also in terms of number of jurors (seven in Brazil) and the form of reaching a verdict. In Brazil, the judge asks questions that are voted on — individually and secretly — so that the decision is taken by simple majority (just four favourable votes to condemn, unlike in the US where the decision of the jury is normally consensual, after the jurors have deliberated).
In Brazil, there is no plea bargain institute for this type of crime, all admitted cases are judged by jurors and there is no possibility of negotiation; murder cases are always decided by a public trial.
In late 2019, the Conselho Nacional de Justiça (National Council of Justice, which administratively controls the judiciary) published a study on the length of proceedings judged by the jury court in all countries. First, attention was drawn to the disparity in duration between federated units. The state of São Paulo (the most populous in Brazil) had the longest average duration for the process (12 years and nine months). At the other extreme, the southern state of Paraná (with an average duration of two years and two months) presented the best result.
In any case, the national average of six years and one month indicates inefficient and harmful justice for all involved in the process. It inflicts a feeling of injustice and insecurity on society. The relatives of the victims suffer from a growing sense of impunity. The accused often perishes at the possible outcome of his trial. Considering a judgment far from the date of the fact creates problems for the production of evidence — especially testimonial evidence — which makes the work of the prosecutor and lawyers difficult.
The Jury Court is provided in the Brazilian constitution as a fundamental guarantee. This, in itself, should influence the state to develop policies and strategies to ensure not only that the operation is geared to protect the defendants, but also that the state response is be swift.
In terms of conviction and acquittal numbers, the survey found that over 70 per cent of the sessions result in convictions. Of course, such empirical studies are not able to indicate the consequences of and reasons for this issue, but these figures reinforces the general perception held by litigation lawyers that, in a trial before a jury, a conviction is likely. This can be explained by growing media exposure of the cases, a disparity of resources between prosecution and defence, and popular outcry against recurrence of crime. However, this could also indicate that the judicial police and prosecution (which have no reporting relationship in Brazil), have been able to adequately prove the responsibility of the perpetrator.
As a result of this data, several proposals are being discussed to modernise and accelerate the prosecution of murder cases through procedural legislation. However, only with a policy of structuring and investing in investigative police and the judiciary itself will changes be felt that do not also hamper the rights of the accused.
Another point regarding the perceptions of the Jury Court that deserves mention is the recent approval of Law 13,964 / 2019, which will come into force at the end of January 2020. Two aspects will be mentioned in this article: first, the police inquest can no longer be joined to the criminal proceeding; second, convictions with sentences of longer than 15 years of imprisonment must be commenced immediately.
The Brazilian Constitution provides for the adoption of an adversarial system, but is also full of inquisitorial rules as it was based on the Italian fascist criminal procedure code. Judges have the power to determine the production of evidence that is convenient for them or even arrest a suspect without any request from the prosecution. In addition, the same judge who actively participates in the production of evidence is the one who subsequently judges the accused.
The new law aims to prevent the judge who has access (and often participates) in the investigation to be the one who will judge the case, to avoid inexorable bias. Elements generated during the investigation, such as police inquiries and statements, may no longer be used in the proceedings, requiring that evidence should be produced during court trial, by the parties (prosecution and defence) and in the presence of a competent judge.
This will require that, in the plenary of the jury court, the evidence presented to the jury is also produced in compliance with the adversarial principle and the elements of the investigation (with the exception of technical evidence, for example) should be dismissed. This change will serve to increase the quality of the work and the decision itself, as the parties will have to produce the evidence in front of the jury and the jurors will no longer be influenced to base their decisions on unreliable elements (such as written statements collected by the police).
The second aspect concerns the early execution of the sentence in the case of convictions that are more than 15 years old. In this regard, it is necessary to explain that the Brazilian Constitution provides a fundamental guarantee that someone will only be found guilty after the final judgment has been passed. Thus, as long as the appeal possibilities have not been exhausted, any accused must be considered innocent. Therefore, only after the res judicata can the accused be arrested.
Obviously, this does not preclude pre-trial detention while the accused is being prosecuted (serving prison time that is not derived from a sentence), which, according to recent research, accounts for about half of all those currently incarcerated in Brazil
That said, recent law allows for a new form of imprisonment specific to jury trial cases. Considering some factors that often prevent the accused from having a fair trial before the jury, the immediate application of the sentence — even if there is an appeal to the higher court to analyse the regularity of the trial — directly offends the Brazilian Constitution and its fundamental principles of democracy.
In conclusion, from what is presented in these aspects, the jury in Brazil (as an institute of the judiciary) needs investment to make it more expeditious in its judgments. However, it cannot be forgotten that judgments must occur with respect to constitutional principles.
Litigators also need to develop techniques for acting properly in cases that last for so many years. Considering this, application research by Anglo-Saxon institutions into interrogation and cross-examination techniques — on the analysis of juror profiles, as well as on methods of persuasion— is fundamental to ethical and responsible action.