By Leonardo Marcondes Machado and William Weber Cecconello
The proof is, at the same time, central category[1] and absolutely controversial in the criminal procedural system. According to Badaró, "here's the most difficult point of the process: proceed to the historical reconstruction of the facts, in accordance with the legal rules governing the investigation, Admission, the production and evaluation of evidence".[2]
In this vein, The Brazilian legal system usually identifies memory-dependent evidence (ex.: Testimonials and personal acknowledgments) a means of instructing the criminal case that can be, or better, in need of (re)Production in court. Incidentally, Second Classical Dogmatic Understanding, Its evidential nature would depend precisely on the training at the procedural stage (and not just preliminary investigation) by means of a full adversarial procedure. At a glance, The repetition of the act would be indispensable for many to the regular constitution of this means of proof.
Occurs, nevertheless, that this legal-procedural demand for evidentiary validity, with clear democratic concern, Founded on the principle of due process, You may find some rough edges in the face of the scientific assumptions of the psychology of testimony. This is because the idea of repeatability of personal evidence sources, usually admitted in the legal field, including for the purpose of evidentiary classification, does not take into account the mode of operation of human memory.
Memory is a cognitive process whose function is not to record everything, but enable the learning of information. When it comes to witnesses, This means that after an event has occurred (e.g., A Criminal Fact) New information obtained can be incorporated into the original memory[3]. In an experiment[4] which illustrates such assertions, Witnesses were exposed to a man, No tattoo, Burglarizing a car, And after that they talked about the crime. The researchers secretly arranged with a participant to talk about how he remembered the burglar having a tattoo on his neck. A week after the crime, Witnesses were asked to recognise the offender on the basis of 8 (eight) Photographs of similar people, one of them being the true author, and another an innocent man with a tattoo on his neck. Most participants recognized the innocent suspect with the tattoo, indicating that the incorrect information suggested after the event (Neck tattoo) had been stored together with the memory of the facts.
Regarding the way human memory works, The recognition of persons must be understood as unrepeatable evidence. Research shows, v.g., That someone's face, Once recognized, ends up tied to the memory of the event, so that, in the case of the witness or victim being invited to a second act of recognition, It will no longer be based on the facts experienced at the time of the crime, but rather the result of all the reconnaissances previously made[5].
In addition to the insertion of new information that is encoded together with the original memory, Human memory is also subject to oblivion over time. Like this, even if the essence of the encoded information remains, Details that may be relevant to the case tend to be overlooked. Stress yourself: The memory of an event is not a record that remains intact, as well as is not repeatable[6].
Distrust of the memory of victims and witnesses is an old issue, but that can be better worked from new assumptions in the field of evidentiary reasoning. If, On the one hand, It is not possible to change the functioning of memory, nor is it desirable to ignore the recognition of persons as a means of proof in the criminal case; On the other hand, It is possible to invest in changing the information procedures of the criminal justice system, Always looking for the implementation of new technical protocols that reduce the chance of errors (or wrongful convictions).
Along these lines, It is essential to think of a better discipline of criminal procedure for evidence dependent on memory, as well as the technical training of law enforcement agencies and chain of custody preservation mechanisms.
It doesn't hurt to remember, v.g., that in countries such as England and the United States of America, many of these tests are recorded in audio and video format, can be accessed at the procedural stage[7]. What, although not without criticism, It allows a more reliable record of the information collected, as well as the method of formation of evidence and the type of protocol adopted by the investigative bodies.
It is worth noting that some Brazilian police agencies have also begun to work with the audiovisual system in their ordinary criminal investigation procedures (and not only in the records of arrest in flagrante delicto). This is an important step in the movement to overcome the written form of the police investigation. Not to mention the use of individual cameras in overt policing activities, Quite useful, among other moments, In the event of arrest, capture in flagrante delicto.
All these technological features, if appropriately employed in the criminal justice system, can assist in the proper investigation of the criminal case. That doesn't mean, however, the automatic and generalized transmutation of investigative acts into acts of evidence in a kind of mockery of the full and ample adversarial process. The great concern lies precisely with the improvement of criminal procedure through a stricter evidentiary discipline, concerned about the decrease in miscarriages of justice due to false memories.
Soon, It is essential to reflect on the scientific contributions of psychology in the field of memory-dependent tests. Two situations seem absolutely relevant in this area. The recognition of people as unrepeatable evidence and the need for appropriate methods for criminal interviews. That's because, Although the hearings of witnesses, suspects or victims are likely to be repeated, as long as they are conducted through regular techniques, A single interview conducted improperly can also lead to the insertion of false memories.
[1] The evidentiary question is shown to be one of the "most important in the science of the process", insofar as the correct verification of the facts on which the parties' claims are based is a fundamental prerequisite for the delivery of a fair decision" (GOMES FILHO, Antonio Magalhães. Notes on test terminology (Reflections on the Brazilian Criminal Procedure). In: YARSHELL, Flavio Luiz e MORAES, Maurício Zanoide. Estudos em homenagem à Professora Ada Pellegrini Grinover. São Paulo: DPJ, 2005, p. 303). A respeito da centralidade do tema da prova no processo penal, em especial num modelo acusatório: CONSO, GIOVANNI; GREVI, VITTORIO. Compendio di Procedura Penale: appendice di aggiornamento. Padova: Cedam, 2001, p. 276 / TONINI, Paolo. Lineamenti di Diritto Processuale Penale. 12 ed. Milano: Giuffrè Editore, 2014, p. 115.
[2] BADARÓ, Gustavo Henrique Righi Ivahy. Processo Penal. 6 ed. São Paulo: Thomson Reuters Brasil, 2018, p. 385.
[3] FRENDA, Steven J.; NICHOLS, Rebecca M.; LOFTUS, Elizabeth F. Current issues and advances in misinformation research. Current Directions in Psychological Science, v. 20, n. 1, p. 20-23, 2011.
[4] EISEN, Mitchell L. et al. “I Think He Had A Tattoo On His Neck”: How Co-Witness Discussions About A Perpetrator’s Description Can Affect Eyewitness Identification Decisions. Journal of applied research in memory and cognition, v. 6, n. 3, p. 274-282, 2017.
[5] STEBLAY, Nancy K.; DYSART, Jennifer E. Repeated eyewitness identification procedures with the same suspect. Journal of Applied Research in Memory and Cognition, v. 5, n. 3, p. 284-289, 2016.
[6] CECCONELLO, William Weber; DE AVILA, Gustavo Noronha; STEIN, Lilian Milnitsky. The (go)repeatability of memory-dependent criminal evidence: a discussion based on the psychology of testimony. Brazilian Journal of Public Policies, v. 8, n. 2, p. 1057-1073, 2018.
[7] MILNE, Becky; SHAW, Gary; BULL, Ray. Investigative interviewing: The role of research. Applying Psychology to Criminal Justice, p. 65-80, 2007.