As a rule, evidence in criminal proceedings is only gathered after the defendant has been summoned and the criminal action has actually begun. But it's not always possible to wait.

Some situations require the judge to expedite the production of evidence, especially when there is a risk that it may be lost over time, such as in the case of witnesses who may forget important details. 

This is what is called the early production of evidence.

This topic, although technical, has gained prominence in the courts and in the practice of criminal law, precisely because it raises sensitive issues such as the memory of witnesses, the adversarial system, the role of legal counsel, and the limits of the adversarial system.

If you work or intend to work in the criminal field, understanding these points is essential for formulating good defense or prosecution strategies.

Why anticipate the production of evidence?

Not every challenge can wait. 

In many cases, the mere passage of time is enough to compromise the memory of witnesses, weaken details, or make the reconstruction of events impossible. 

Especially in criminal proceedings, this can be fatal.

Therefore, in well-defined situations, the Code of Criminal Procedure allows certain evidence to be produced in advance, even before the evidentiary phase, or even with the proceedings suspended, in cases where the defendant has been summoned by publication.

Two legal provisions provide the basis for this measure:

• Article 156, I, of the CPPIt allows the judge, even on their own initiative, to order the early production of evidence deemed urgent and relevant, even before the start of criminal proceedings.
  
• Article 366 of the CPPIf the defendant is summoned by publication and fails to appear or appoint a lawyer, the judge may suspend the proceedings and the statute of limitations, and, in addition, authorize the early collection of urgent evidence to prevent the destruction of evidence.

Once the evidence has been identified, the judge must justify, based on concrete elements, that there is a real risk that the evidence will disappear or lose its validity if it is not collected immediately.

This is what we will see next, with emphasis on the understanding consolidated by the Superior Court of Justice (STJ) in Precedent 455 and in recent judgments involving absent defendants and witnesses with limited memory due to their official duties.

Summary 455 of the Superior Court of Justice (STJ): Limits for the use of advance payments.

To prevent abuses and ensure that the early production of evidence is not used as a procedural shortcut, the Superior Court of Justice has consolidated an important understanding in Precedent 455:

"The decision to order the early production of evidence based on Article 366 of the CPP must be specifically justified, and the mere passage of time is not sufficient justification."

This means that the mere fact that time is passing is not enough. 

It is unacceptable for a judge to anticipate the gathering of evidence based solely on a generic possibility of oversight or delay. 

Specific justifications for the case at hand must be presented, pointing to objective elements that indicate a real risk of the evidence being lost.

In practice, the judge must provide detailed justification for the measure, and the defense can (and should) challenge generic decisions, especially when there is no proven urgency or when the opportunity for rebuttal is limited.

When does a summary judgment not apply?

In judging RHC 64.086/DF, the Third Section of the STJ not only allowed the early production of evidence based on the risk of police witnesses forgetting, but also explained why this did not contradict Precedent 455. 

The reason? The case was different. Therefore, distinguishing was performed.

Distinguishing is a legal technique used to avoid applying a precedent when there are significant differences between the previous case and the current one.

As Professor Fredie Didier explains, it's a matter of comparing the factual evidence and verifying whether the differences are significant enough to justify a different solution.

That is exactly what the Superior Court of Justice (STJ) did. 

Recognizing that police officers, due to their intense routine and continuous exposure to similar cases, have their memories affected more quickly, the Court understood that the risk of evidence being lost was not abstract, but concrete and justified.

This same line of reasoning was adopted in several other rulings, including by the Supreme Federal Court (HC 135.386, Rapporteur Gilmar Mendes), which validated the early production of evidence based on the possibility of a police witness forgetting something, emphasizing respect for the right to adversarial proceedings and the reasonable duration of the process.

As reinforced in the AgRg in AREsp 1.995.527/SE, the 6th Panel reiterated that, in cases involving police witnesses, urgency can be characterized both by the time that has already elapsed and by the nature of the job, with a real risk that the evidence will lose quality over the years.

Possible contradiction and reuse of evidence

Another paradigmatic case that reinforces the more flexible interpretation of Precedent 455 was the judgment of HC 751.023/SC, reported by Minister Reynaldo Soares da Fonseca. 

In it, the Superior Court of Justice (STJ) reaffirmed the possibility of producing or using oral evidence even when the proceedings are suspended due to service by publication.

The central point of the controversy was this: the defendant had not been located and the proceedings were suspended. 

Nevertheless, the court ruled that the testimonies collected in relation to the co-defendant should be used, a measure questioned by the defense based on the alleged non-compliance with the precedent and the absence of a request from the Public Prosecutor's Office.

The Superior Court of Justice (STJ), however, upheld the validity of the acts, based on three main grounds:

1. The right to present opposing arguments was guaranteed: the evidence was produced in the presence of a duly notified and active public defender. Even though the accused was not present, there was effective legal representation at the time the evidence was gathered.
   
2. The judicial decision was well-founded: the judge pointed to concrete reasons for the measure, such as the lapse of seven years since the events and the evident risk of memory loss among the witnesses. This reasoning is consistent with the jurisprudence that tempers the application of Precedent 455.
   
3. Possibility of future repetition of the evidence: if the defendant is located, their defense may request the renewal of the oral evidence. This reinforces the non-absolute nature of the anticipation, which, if it does not cause actual harm, can be used without invalidation.
   

The Superior Court of Justice (STJ) made it clear that procedural economy and the search for truth cannot be indefinitely paralyzed by the absence of the defendant, as long as the process respects the limits of adversarial proceedings and the right to a full defense in its possible form.

An invitation that is (more) than necessary.

If you truly want to delve into the most current discussions in Criminal and Criminal Procedure Law, such as the early production of evidence, the accusatory system, and the jurisprudence of the superior courts, you need to learn about the Postgraduate Program in Criminal and Criminal Procedure Law at IDP.

The course is 100% online, with live classes every two weeks, always on Fridays and Saturdays, allowing you to balance your professional routine with your studies. 

The faculty includes renowned names from both practice and academia, such as:

• Ricardo Saadi – Federal Police Delegate and Doctor of Law;
  
• Orlando Faccini Neto – Judge at the TJRS (Court of Justice of Rio Grande do Sul), with extensive experience in criminal enforcement;
  
• Carolina Costa Ferreira – Lawyer and PhD with practical and academic experience.

Over the course of 12 months, the program delves into topics such as criminal investigation, criminal procedures, imprisonment, precautionary measures, appeals, penal execution, and much more, always based on concrete cases, jurisprudential analysis, and strategic application.

If you want to work with confidence, critical thinking, and refined technique in the criminal justice process, this specialization was designed for you.