A teoria da perda de uma chance probatória no processo penal sob a perspectiva do princípio da presunção de inocência

Abstract

The present work has the intention of studying the theory of the loss of a chance, initially approaching its historical origin and its evolution in the legal. In this line, the theory of loss of a chance was applied in civil law, specifically in the field of civil liability, relating it to the loss of a future chance, and the missed chance must be serious and real, within a judgment of probability and not mere possibility. Later, loss of a chance was invoked in criminal proceedings, in the context of the production of evidence, or that is, when the State - as an accusatory party, represented by the Public Ministry - has the duty to produce pertinent and relevant evidence for the elucidation of the case concrete, but does not do it, thus noting that absolution is the measure that must be imposed in these cases. From this, it appears that the theory of loss of a probationary chance works as an instrument of defense of the defendant, insofar as that in the absence of sufficient evidence to give rise to the conviction of the accused, well as by the fact that the accused is protected by the mantle of presumption of innocence, absolution proves to be the most appropriate and fair measure. Therefore, the theory of the loss of a chance is evidenced as a form of procedural solution. Finally, from a sociological point of view, in which, for the most part, the accused are individuals who are marginalized by society and do not have skillful technical defense, it turns out that the theory of loss of a chance works as a means of solution fair procedure to the extent that the accused, a vulnerable part of the process, has a defense mechanism before state power and a possible conviction reckless, based on evidence of authorship and evidence of materiality insufficient