THE ADMISSIBILITY OF HEARSAY TESTIMONY AS A DECISIONAL CRITERION IN JURY TRIAL PROCEEDINGS: A STUDY FROM THE PERSPECTIVE OF THE THEORY OF PENAL GUARANTEES

Abstract

This article analyses the admissibility and epistemic relevance of hearsay testimony within the scope of the indictment decision in the brazilian criminal procedure. The general objective is to examine whether “hearsay” statements possess sufficient evidentiary weight to exclusively justify committing the accused to trial by the Jury Court, from the perspective of fundamental guarantees. The methodology employed is theoretical and qualitative, of a legal-interpretative and dogmatic-critical nature, developed through bibliographical and documentary research, with special emphasis on Luigi Ferrajoli’s theoretical framework of Criminal Garantism and the analysis of precedents from higher courts. It discusses the overcoming of the in dubio pro societate principle during the indictment phase and the impacts of Theme nº 1392 of General Repercussion of the STF. The results indicate that, although hearsay testimony does not constitute unlawful evidence by its origin, it suffers from severe epistemic frailty and render the exercise of full adversarial principle impossible. It concludes that the indictment decision demands a rigorous evidentiary standard aligned with the Democratic Estate of Law, revealing that an indictment based exclusively on indirect accounts is illegitimate.