According to research by the STJ, 74.6% of acquittals of defendants due to failure to recognize in 2023 were motivated by error in identification through photography
Of the 377 decisions of the STJ (Superior Court of Justice), in 2023, which revoked the provisional prison or acquitted the defendants due to failure to recognize them as perpetrators of crimes, 281, or 74.6% of the total, were based on the existence of errors in identification through photographs.
The data was collected by the minister’s office Rogerio Schietti Cruz. The information was based on monocratic and collegial decisions handed down by the 5th and 6th Panels of the STJ from January 1st to December 31st, 2023, in the REsp procedural classes (special resource)AREsp (appeal in special appeal), HC (habeas corpus) and RHC (habeas corpus appeal).
According to the study, throughout 2023, 4,942 cases were analyzed in which the defense questioned the procedure adopted in the personal recognition of suspects, resulting in 268 judgments and 4,674 monocratic decisions. In 377 of these trials, the provisional arrest was revoked or the defendant was acquitted.
The decisions – 19 judgments and 358 monocratic ones – represented around 7.5% of the total number of judgments that dealt with the issue of personal recognition, a percentage considerably higher than the average of decisions favorable to the defense that are usually handed down by the STJ’s criminal law panels. ANDm 2019for example, the number of acquittals through habeas corpus did not exceed 0.28% (PDF – 1 MB) of the total requests examined by the Court.
Photos and failed recognition
According to Minister Schietti, the data reveals non-compliance with a series of “cautions” in photo-based recognition.
“It was possible to observe that the use of non-standardized images, extracted from social networks and outdated, was accompanied by unreliable practices”said Schietti.
Some of the practices, according to the minister, are:
- lack of prior description of the author;
- show up (display of a single photo);
- prior sending of a photo via WhatsApp to the recognizer; It is
- repetition of the procedure in court.
The minister also warned that not every photo can be used in recognition. A joint effort by police, prosecutors and magistrates is necessary to carry out a certain “epistemic filtering”. He also highlighted that the requirements for carrying out the type of photo evidence must not be lower than those established for recognition with the suspect present.
In both cases, according to Schietti, the Resolution 484 of 2021 of CNJ (National Council of Justice) should be considered “whether in producing the test or offering the complaintwhether upon receipt, in addition to the decision to verdictthe quality of the recognition actually practiced will need to be analyzed”.
The minister also stated that respect for the rules of the article 226 of the CPP (Criminal Procedure Code) does not represent a guarantee only for the suspect, but also for the work of the police and Justice and for the victim himself, “who is most interested in the identification and criminal liability of the real perpetrator of the crime”. According to Schietti, the process is less subject to nullities, with errors being avoided.
Precedent is not yet fully followed
The STJ survey identified that, in most cases, the discussion of the case revolved around the correct application of the article 226 of CPP. The article provides guidelines for recognizing people in the criminal sphere.
Depending on the device, the procedure should be as follows:
- the victim or witness previously describes the person to be recognized;
- the suspect, if possible, should be placed next to other people who resemble him;
- the victim or witness points out the individual they recognize;
- if necessary, measures must be taken so that the person to be recognized does not see the person making the recognition;
- The recognition report must be drawn up, signed by the person who carried out the recognition and by two witnesses.
In the cases that were reviewed by the STJ in 2023, the originating instances had generally understood that article 226 of the CPP would only bring a “recommendation”. It was assessed that non-compliance with the legal provisions would not be a reason to declare the evidence collected null and void.
The jurisprudence of the STJ, however, is different. For the Court – in the wake of precedents from the STF (Supreme Federal Court) –, the article is mandatory to observe and serves as a minimum guarantee for anyone who is suspected of committing a crime.
Still according to the STJ, even if recognition is carried out in accordance with the article, the procedure “has relative probative value and cannot, by itself, lead to certainty about the authorship of the crime”.
Reasons invalidate photo recognition
Among the acquittal or revocation decisions issued throughout 2023, some examples help to understand the flaws in personal recognition, especially photographic recognition.
In the judgment of REsp 1,996,268by the 5th Panel, under the report of Laurita Vaz, the understanding was that there was no photographic or personal recognition during the inquiry, but in the judicial phase, almost 8 months after the facts narrated in the complaint. Photographic recognition was also carried out by simply presenting the victims with photos of the accused taken from the internet. In relation to one of the accused, only the photo shown on his reservist certificate was presented.
In case of HC 790,250judged by the 6th Panel, under the report of Rogerio Schietti Cruz, it was found that the police only presented photos of the suspect to the victims, without placing them alongside others and without observing the other requirements of article 226 of the CPP.
In the judgment of REsp 2,028,533carried out by 5th Panel, with rapporteur Joel Ilan Paciornik, the victim was recognized while in the hospital, through a photo, and the recognition form was signed by a single witness – the victim’s mother. Recognition was not carried out again at the judicial stage.
It was also found, in the case of AREsp 2,320,506, judged by the 5th Panel under the report of Ribeiro Dantas, who, moments after the crime, the police officer who acted in the investigation showed the victim, directly from his cell phone, a photo of a suspect wearing his cap backwards. At the time, no photographs of people with similar characteristics were shown. In the judicial phase, despite having confirmed the suspect, the victim said that the person “remembered the thief”without having demonstrated certainty about the identification.
With information from STJ.
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