A forma como garantia: uma análise da cadeia de custódia de provas digitais no processo penal brasileiro

Abstract

With the advent of law 13.964/2019, the institute of chain of custody was inserted into the CPP. Article 158-A et seq. of the Code of Criminal Procedure provide for a series of steps and procedures to ensure the custody of evidence. However, the provisions added to the CPP are limited to physical evidence, without mentioning which techniques should be used with digital evidence. The distinction between which procedures should be adopted with digital and physical evidence is fundamental, as digital evidence has very specific characteristics that make it more susceptible to tampering. In this context, the aim of this paper is to identify how the chain of custody of digital evidence is regulated in Brazilian criminal law. This is with the intention of analyzing the indispensability of the correct application of the chain of custody, specifically of digital evidence, for the application of minimally fair criminal convictions. To this end, the methodological procedures adopted are the qualitative approach and the deductive method, through bibliographical research and jurisprudential analysis. Thus, it can be seen that the insertion of article 158-A and the other paragraphs are not enough to regulate the preservation of digital evidence, as the legislative provision does not take this type of evidence into account. As such, it was observed that, given the legislative omission, the issue of the chain of custody of digital evidence, despite being crucial to criminal proceedings, is regulated by the law.