The standard of proof in a democratic criminal procedure law

Abstract

The present study seeks to discuss the degrees of conviction or models of confirmation on which the judge should be based to ensure that a specific hypothesis is confirmed in the criminal procedure. Originated in the Anglo-Saxon system of law, initially designated as the Standard of proof, such premises have at least four evidentiary standards that need to be investigated: clear and convincing evidence; evidence that is more probable than not; preponderance of the evidence; beyond a reasonable doubt. The first three are of broader application in Civil and Administrative Law and the last one is considered, most of the time, in criminal conviction proceedings. This system of proof beyond reasonable doubt is compatible with the Federal Constitution and is also supported by the Rome Statute and ratified in decisions of the European Court of Human Rights. The standard of proof is a criterion that establishes the degree of evidentiary confirmation necessary for the judge to consider a factual statement as proved. Thus, considering that the criminal process is an arena of uncertainties and that the prosecution always has a considerable advantage, once it has the state apparatus in its favor, while the accused has only its defender, thereby, arises a greater need to demonstrate the responsibility of those who accuse. For this reason, the state, in free and democratic societies, must treat citizens as innocent until proven guilty, privileging a pro-citizen judgment. The concern with the security of a judgment based on fact under the entirety of the evidence appears in several precedents of the Superior Courts on evidentiary issues. For these reasons, the observations presented in this article validate the institute of standards of proof in a democratic criminal procedure law.