ILLICIT EVIDENCE, INVIOLABILITY OF THE HOME, AND PENAL SELECTIVITY: AN ANALYSIS BASED ON THE THEORY OF CRIMINAL PROCEDURE AS A LEGAL SITUATION

Abstract

This article seeks to analyze, in light of James Goldschmidt’s theory of criminal proceedings as a legal situation, a decision rendered by the Superior Court of Justice (STJ) in an appeal on a special matter (Recurso Especial) concerning and recognizing the unlawfulness of evidence obtained through an unlawful intrusion into a residence. Based on the decision as a whole, the article seeks to demonstrate that the exclusion of such evidentiary material derives from compliance with fundamental rights and guarantees, as well as from the impossibility of imposing procedural burdens related to evidence produced in violation of the Brazilian legal system. Furthermore, from the perspective of critical criminology, the article seeks to identify the manifestation of penal selectivity in this episode, reflecting on the conduct of state agents and its consequences for socially vulnerable populations living in Brazilian favelas.