O encontro fortuito das provas na interceptação telefônica e sua validade probatória

Abstract

This article intends to present an analysis about the legitimacy and use of proofs find fortuitously, the theory of evidence gathering, interception of phone communications in criminal investigations and criminal procedural instructions. The inadmissibility of the illegal evidence is a protection for the citizen, however, there are situations in which flexibility is necessary, otherwise the subjective right to punish by the State and the guarantees granted to citizens can be prejudiced. The Greater Law began to treat the permissibility of telephone interception in its article 5, subsection XII, undoing part of the controversies that existed around the present subject. Based on the understanding of proof proposed by the Brazilian Code of Criminal Procedure and Law 9.296/96, dissenting doctrine and jurisprudence, it is pointed out the importance of regulating the find fortuitously proof. There is no consensus in the doctrine or in the jurisprudence on the validity of this type of evidence, we continue in the search for a majority alignment of opinions, regulating and facilitating the communication of fortuitous evidence between processes, especially telephone interception.