O desconhecido além da “Muralha”: as metáforas de guerra no discurso do Ministério Público e a presunção de inocência no Tribunal do Júri

Abstract

The subject of the research is the admission of criminal records as character evidence in the jury trial. The hypothesis submitted to the filter of the research was that the speech of Public Prosecutor attributes meanings to the criminal history of the defendant that oversize its probative value, providing convictions with violation of the presumption of innocence principle. The general objective is to define, based on the cognitive-discursive analysis of the prosecution speech in a jury trial in the District of São Luís/MA in 2022, in which criminal history fulfills the function of compensating the proof insufficiency, obtaining elements to think about the admission of character evidence in the jury procedure. The theoretical references chosen were, in the Law of Evidence, the rationalist tradition of the proof (FERRER BELTRÁN, 2007; 2016; LAUDAN, 2006); in Linguistics, Vereza's cognitive-discursive analysis (2007, 2010a, 2010b, 2013a, 2013b, 2016a, 2016b, 2017, 2020) and Fillmore Frame Semantics (2006). In this qualitative research, of exploratory nature, the inductive approach method and the monographic, legal-descriptive and legal-proposition methods of procedure were used. With the scope of stressing the research parameters, the case selected should have a deficient evidential set and the defendant should have criminal history. After collecting the data for corpus composition, the theoretical-methodological procedure of cognitive-discursive analysis was applied. The results obtained indicate that the bad character evidence, in the case investigated, are the final touch of a discursive strategy dedicated to subverting the game rules, because it openly calls into question the position of the prosecution as a debtor of the burden of proof, proposing, indirectly, the mitigation of the standard of proof required for a conviction. The lack of evidence is not a fault of the public prosecutor, but a consequence of the "wall" built by organized crime. Thus, the law itself, as a pretension of regulation of life, is questioned as a reference of the decision, putting, in its place, the punitive common sense. Once it is verified that the procedure does not have mechanisms capable of avoiding the denaturation of its expected epistemic rationality, it is suggested the systematization of the character evidence admission in the jury trial, within the framework of the rationalist tradition.