Hearsay testimony and indictment decision

an analysis of the evidentiary standard required for submitting the accused to the jury trial

Abstract

This scientific article analyzes the probative insufficiency of indirect testimony (hearsay testimony) to support the Indictment Decision (Decisão de Pronúncia) within the specialized rite of the Jury Trial. The study aims to demonstrate the reduced epistemic potential of indirect depositions, stemming from the inability to effectively exercise the adversarial principle (contraditório), due process, and the right to confrontation (cross-examination). The article further addresses the indispensability of hearing referred witnesses and the concept of agency epistemic injustice.In opposition to the non-codified aphorism of in dubio pro societate, the essay argues that the evidentiary standard (standard probatório) for indictment requires a high probability of the accusatory thesis, equivalent to the "clear and convincing evidence" criterion. In line with this perspective, recent jurisprudence from the Superior Tribunal de Justiça (STJ) rejects the suitability of hearsay as the sole basis for the indictment. Subsequently, the regulation of this theme in other jurisdictions will be analyzed, and proposals for treating indirect depositions in Brazilian criminal procedure will be presented. The conclusion is that while hearsay may be admissible as a mere informational element, as it is not an illicit or illegitimate form of evidence, it is epistemically unreliable to meet the required evidentiary standard for submitting the accused to the Popular Tribunal.