Tribunal do júri : controvérsias sobre uma justiça cidadã no processo penal brasileiro (séc. XIX)

Abstract

The Jury (or Court of Jury), a immutable clause provided in the article 5, item XXXVIII of the Constitution of the Federative Republic of Brazil, 1988 (combined with article 60, §4, of the forementioned diploma), and regulated in the following legal devices: articles 406 to 497 of the Brazilian Criminal Procedure Act of 2008 (Law No. 11,689, of June 9, 2008); not always had the legal configuration it presents today. Heir of the liberal ideal of a justice that prioritizes the Law over the judges, the Popular Court was established in Brazil shortly before the proclamation of the country's Independence in 1821, under the influence of the liberal outbreaks in Europe, most directly in Portugal. The Brazilian version was inspired by the English model of Jury, put into practice in British lands with the coming of the Common Law. Initially, the procedure took place in two stages, with both a Jury Indictment and a Jury of Judgment, with the participation of the Board of Jurors throughout the procedural phase, in the case of ordinary causes. In the early years of the Empire of Brazil, the Jury represented a strong progressive resistance to the centralist and conservative attempts of the Portuguese-Brazilian elites (including the judiciary elite), ensuring the substantiation of the institutions of the new independent country, and disturbing the status quo to the point that a number of criticisms - often unfounded - were given to it, as the Jury, in its original form, performed it's role satisfactorily, that being the fulfillment of the formalized laws. In 1841, it experienced its first grandiose modifications, with the approval of Law 261 during the Regency Period, it's original configuration being quite suppressed (the reason why the temporal cut chosen for the present research goes back to 1821, when this device was installed at the Brazilian judicial system; until 1841, occasion of several removals to the institute, especially as far as the Grand Jury is concerned). The issue that it's been addressed is the nature of the attacks on the Court, that were based on its inaugural legislative suppressions, highlighting what law experts at the time claimed. The general goal therefore, is to raise the charges and defenses made to the Jury by the advertisers during the proposed period. In a specific purpose, the criticisms directed at the institution will be scrutinized in order to understand what they were about, and mostly if they had any relation to Positive Law and the Process.