JUDGE OF GUARANTEES AND ACCUSATORY SYSTEM: AN ANALYSIS REGARDING THE NEED FOR DETACHMENT/ARCHIVING OF THE INVESTIGATION FILES IN LIGHT OF THE EFFECTS OF COGNITIVE PRIMACY, DISCORDANCE, AND ORIGINALITY

Abstract

This article aims to clarify the role of the judge of guarantees within the accusatory system, considering the innovations introduced by Law No. 13,964/2019, as well as to offer a brief analysis regarding the necessity of removing or archiving the police investigation records, based on the knowledge of Criminal Procedure Law and the contributions of Social Psychology. The method employed is deductive, through bibliographic and documentary research in academic works, articles, books, legislation, and case law. In summary, the article demonstrates that the figure of the judge of guarantees is of utmost importance for preserving the integrity of the accusatory procedural structure and the objective impartiality of the trial judge. However, it is not sufficient to entirely prevent the potential contamination of the trial judge by the informational elements produced during the preliminary investigation phase. According to the findings presented, the study of the Primacy Effect and Cognitive Dissonance points to the necessity of removing or archiving the investigation records, highlighting the importance of Article 3-C, § 3 of the Brazilian Code of Criminal Procedure (despite the Brazilian Supreme Federal Court having ruled otherwise, declaring the unconstitutionality of said provision and holding that the records related to matters under the jurisdiction of the judge of guarantees must be forwarded to the trial judge — ADI 6298). This is justified by the fact that the information produced during this stage of the criminal prosecution, which occurs without immediate adversarial proceedings, may influence the judge’s cognitive process and decision-making, thereby compromising judicial impartiality — the cornerstone of the accusatory system.