O instituto da perda de uma chance probatória no processo penal: uma análise sobre a (im)possibilidade do arrolamento extemporâneo de testemunha superveniente ou intempestiva

Abstract

The objective of this research is to analyze the implications of the evolution of thought French legal, originating from the Loss of a Chance Theory (perte d’une chance) conceived in terms of civil liability and subsequently passed on to the criminal process. It is intended to weigh up the interpretation of the dogmatic rigidity of art. 396-A of the CPP with the flexibility of art. 209 of the CPP, in order to analyze the AREsp 1,940,381, 5th Panel of the STJ on the (in)aptitude of the STJ to amend the judgment conviction, based on the parameters established by the Evidence Law, and by the Nullity System. It is essential for this research to observe that, as yet, was fully pacified by the Brazilian courts the application of the Theory of Loss of a Chance, which strengthens the understanding that the Brazilian legal system has been relentless in the important mission of standardizing the application of theory in your decisions. It will also be observed that the Loss of a Chance Theory gives prestige to the contradictory, full defense and due process of law, making them compatible with constitutional rights and guarantees. The methodological procedure is guided in bibliographical and jurisprudential research, added to the relevant legislation in force, with an interdisciplinary approach that promotes dialogue between Civil Law, Criminal Procedure and Constitutional Law