O juiz das garantias e a exclusão do inquérito policial da fase processual como forma de minimizar a contaminação subjetiva do julgador

Abstract

This monograph focuses on the subjective bias of the judge due to the elements gathered during the pre-trial phase of criminal prosecution, especially through the judge’s contact with the police investigation. In this context, relying on both classic and contemporary literature, the study examines how a judge is psychologically influenced when ruling on a criminal case, as well as the negative consequences of this phenomenon for the defendant and for the principles and rules of criminal procedure. With this issue as the starting point, the institution of the "guarantor judge" (juiz das garantias), introduced into Brazilian criminal procedure by Law 13.964/2019, was analyzed as the main tool used by legislators to minimize the effects of the judge's subjective bias. Furthermore, this essay explores the judgment of Declaratory Actions of Unconstitutionality (ADIs) 6.298, 6.299, 6.300, and 6.305 by the Brazilian Supreme Court, where the Court ruled certain parts of the articles concerning the guarantor judge to be unconstitutional. In conclusion, it was determined that excluding the police investigation records from the trial phase is necessary to prevent the judge from being exposed to information gathered during the preliminary investigation, thereby preserving judicial impartiality and ensuring that the rights and guarantees provided by the Federal Constitution are upheld for all parties.