The challenges of the privilege against self-incrimination in contemporary criminal procedure

Abstract

This article examines the contemporary challenges faced by the right against self-incrimination in Brazilian criminal proceedings, considering technological transformations and the introduction of negotiated instruments in criminal justice. The study develops through historical-evolutionary analysis, jurisprudential investigation, and normative proposition, having been structured in two main parts. The first part investigates the historical origins of the principle nemo tenetur se detegere, from its denial in the inquisitorial system to its constitutionalization in Brazil in 1988, analyzing the consolidated national and international normative framework, notably the Federal Constitution, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights. The second part examines the challenges imposed by the digital era, in which electronic devices create unprecedented evidentiary collections, calling into question the relevance of traditional distinctions between testimonial evidence and physical evidence. The article critically analyzes plea bargaining, regulated by Law 12,850/2013, especially considering the tension between formal voluntariness and structural coercion, manifested particularly when the collaborator is under pretrial detention. Finally, the study proposes measures for normative harmonization, including the categorization of modalities of cooperation with investigation, the implementation of a specific protocol for assessing the collaborator's voluntariness in plea bargaining, and the creation of specialized judicial bodies in the courts. The conclusion is that preserving the essential core of the right against self-incrimination, in the face of contemporary technological and procedural transformations, constitutes a permanent test for the Democratic Rule of Law, requiring hermeneutic evolution that balances fundamental guarantees with the legitimate needs of criminal prosecution.