Minister Edson Fachin, of the Federal Supreme Court (STF), acquitted a man who was convicted of theft based solely on photographic recognition, which would have been carried out in violation of the law.
In the case, a man had been sentenced to two years and eight months of imprisonment, in an open regime. According to the lawsuit, a witness said he saw the man enter a neighboring house and leave with a backpack, which would have occurred in Lages (SC).
Days later, the same witness had five opportunities to try to recognize, by photo, the possible author of the theft, at which time images of people that investigators had in their albums were shown. However, the witness did not recognize any for sure, stating that they had “some similar”.
On another occasion, another witness heard in the police investigation recognized “with absolute certainty” the man.
According to the minister, photography always represents a moment from the past. The action was presented by the Federal Public Defender’s Office.
“Brightness, angle, quality, resolution, impossibility or imprecision in the measurement of height and physical complexion of the subject object of recognition are factors that make recognition by photography extremely fragile and incapable of supporting a conviction”, he said.
The minister also cited a decision of the Second Panel of the Federal Supreme Court that acquitted, in February of this year, a man convicted of the crime of theft, having as evidence only the photographic recognition made, initially, through the WhatsApp application.
“The presumption of innocence imposes both a duty of treatment and a duty of judgment. The duty of treatment requires that the accused person be treated, throughout the course of the criminal proceedings, as presumed innocent; on the other hand, the duty of judgment means that the burden of proving unequivocally the materiality and authorship of the crime narrated in the complaint falls exclusively on the prosecution body – and not on the accused the burden of demonstrating his innocence,” he said. .
For Fachin, the fingerprint report carried out during the police phase revealed that the fingerprint found in the window on the left side of the property that was broken into to commit the theft does not belong to the aforementioned man.
At the end of the decision, the magistrate cited the phenomenon of false memories, which was tested in a recent study.
“In the experiment, participants were asked to watch a video of a fight, simulating the condition of eyewitnesses to a crime. Subsequently, they were divided into two groups: agreement condition, in which participants were suggested with false information by the confederates, and control condition, in which participants underwent the experiment fully individually, without external interference”, he explained.
“The results collected showed important distortions in the report prepared by the participants who had, a few minutes ago, seen the video of the aggression, corroborating the preliminary hypothesis of susceptibility of human memory to inaccuracies, errors and influences, notably when subjected to traumatic episodes”, complemented.
other cases
The Superior Court of Justice (STJ) analyzed almost 90 actions on the subject since the Sixth Panel, reformulating the prevailing jurisprudence until then, that article 226 of the Penal Code invalidates the recognition of the accused made by the police, and cannot serve as a basis for his conviction, not even if it is confirmed at the judicial stage.
In September 2021, Minister Reynaldo Soares da Fonseca considered the recognition “questionable” and, in the absence of other evidence to support the conviction, acquitted the defendant – a measure indicated by the Federal Public Ministry (MPF).
The National Council of Justice (CNJ) established, in September 2021, a working group with the objective of proposing new regulations for personal recognition in criminal proceedings.
In January, the CNJ launched a public call for the selection of scientific articles on the subject, which will be published in a digital collection and may support the studies of the working group.
In March of this year, Minister Sebastião Reis Júnior, of the Superior Court of Justice, ordered the suspension of two criminal proceedings against a man accused of two robberies that took place in 2013.
In the specific case, the man — who is accused of murder — was on the run in Paraguay at the time of the alleged robberies. The additional complaints were based on a photographic reconnaissance carried out in a police station outside the procedures described in the Criminal Procedure Code.
Source: CNN Brasil
