O confronto entre o princípio da motivação das decisões judiciais (art. 93, inciso IX da CF/88), com o do livre convencimento imotivado (art. 472 do Código de processo penal)

Abstract

The present work has the purpose of comparative analysis of two structural models that explain the functioning of the Court of the Jury. In addition to describing in detail the fundamental characteristics that guide these two systems, the study seeks a possible solution to the confrontation between two principles: the motivation of judicial decisions, foreseen in art. 93, item IX, of the CF / 88, as well as the intimate conviction, foreseen in art. 472 of the CPP. The Jury Plenary is considered an immutable clause, and as a fundamental guarantee, it consists in a two-phase criterion, in which it is constitutionally based, through four guiding principles. They are: the fullness of defense, from the basis of the decision of pronouncement, and subsequently the annual enlistment of the jurors, in which seven will be chosen out of twenty five total that will compose the Council of Judgment, being possible the refusing by the organs of accusation, as well as the defense, which can be motivated or unmotivated. After the oral support of the presented criminal case, the jury shall answer the questionnaire with straight yes or no answers, without displaying any kind of reasoning for it. Therefore, the central discussion of the following work stands for bringing a historical origin to the court of the Brazilian popular jury’s arising and criticizing the way that the institute persists in the present. Finally, it is necessary to re-evaluate it, as it has been done in Portugal and Spain, because there are several reasons that may influence the conviction of jurors, especially the media