A decisão por íntima convicção e a incomunicabilidade dos jurados como problema do tribunal do júri no Estado Democrático de Direito: democracia deliberativa como proposta viável de solução

Abstract

This study aims to discuss the problems related to the current rule of intimate conviction and incommunicability in the procedure of the Jury Trial as provided in the 1941 Criminal Procedure Code. It is intended to demonstrate that the provision of incommunicability in the Criminal Procedure Code is an arbitrary imposition and a legacy of an authoritarian, anti-democratic and anti-liberal regime, which ends up reinforcing the idea that the jury judges by intimate conviction, thus not needing to justify the reasons for their decisions. Therefore, based on the tools of deliberative democracy, the end of silence in the moment that precedes the voting of the questions is proposed. This would allow a deliberation between the jurors and ultimately contribute to the epistemic quality of their decisions. Furthermore, this should consequently remove the old idea that the jury judges by intimate conviction: rooted understanding of the theoretical common sense of jurists, but which is incompatible with democracy and the Federal Constitution.