Fishing Expedition e prova digital: uma análise do fenômeno da serendipidade na busca por provas a partir da autorização judicial para acesso ao dispositivo informático do investigado criminalmente

Abstract

In recent years, the discussion about digital evidence has gained some prominence in criminal procedural practice, which, due to the absence of specific legislation regulating its production, has made it imperative to carry out a comparative analysis with the “classic” model of evidence (or elements of information) collected in the criminal investigation, in order to identify how criminal procedural institutes can be used in the digital environment without implying violations of the legal-constitutional order. In this way, it is necessary to understand the concept and characteristics of digital evidence so that the danger inherent in its production in criminal proceedings becomes intelligible, that is, the unbridled attempt to find the “real truth” and the various fundamental rights violated during the trial. collection path of these tests. This research intends to demonstrate the facets of the principle of serendipity applied to the fortuitous encounter of evidence during the criminal investigation, as well as certain difficulties inherent to this application in the digital environment. For this reason, the direct object of this work will analyze the evidence, including those found with causal deviation, collected through access to the investigated computer device, especially with regard to private messaging applications, such as WhatsApp and Telegram. As a result, the general objective of the research was to identify the extent to which the principle of serendipity could be applied to digital evidence without configuring the illegal practice of probative fishing in criminal investigation, thus establishing the limits of the court order that authorizes the access to the device, as well as evidence found fortuitously on these occasions. Thus, it was inferred that the application of the principle of serendipity depends on certain adaptations in the digital environment, which confirmed the initial hypothesis.