The Lack of Evidentiary Standards to Define “Sufficient Evidence of Authorship” in Pretrial Detentions in Brazil: The Jurisprudence of the Brazilian Constitutional Court

Abstract

Brazilian legislation establishes the presence of sufficient evidence of authorship as a requirement for the determination of pretrial detentions. The objective of this article is to verify the existence—or lack thereof—of a jurisprudential evidentiary standard of authorship that determines the practical/semantic scope of the term sufficient evidence. The research methodology is empirical, consisting of the individual analysis of each case in the statistical sample. Three filters were used: 1) the temporal filter (from January 23, 2020 to November 23, 2022); 2) the substantive filter (related to drug dealing and homicides legislation); and 3) the filter based on decisions of the Brazilian Supreme Federal Court (STF), the judicial body responsible for resolving such interpretative difficulties. With these filters applied, fifteen decisions were found. These fifteen decisions are mentioned in thousands of others using copy and paste. The results suggest the impossibility of arguing the existence of merely punctual errors since, on the contrary, the absence of the sought-after probative standard is evident.