PLEA BARGAINING AS A MEANS OF OBTAINING EVIDENCE AND THE PRINCIPLE OF NEMO TENETUR SE DETEGERE: LIMITS AND GUARANTEES IN THE BRAZILIAN LEGAL SYSTEM

Abstract

The approach to the subject in question has the scope of analyzing plea bargaining as a means of obtaining evidence in the legal system, highlighting its compatibility with the principle of nemo tenetur se detegere, in which it safeguards the right of the accused not to produce evidence against himself. In summary, the approach highlighted the premises of the brevity of the historical evolution of plea bargaining as well as its insertion in the Brazilian penal system, especially after the enactment of Law No. 12,850/2013. The study sought to outline the limits and guarantees established for its application. The general objective was defined in analyzing plea bargaining as a means of obtaining evidence in the Brazilian legal system, highlighting the limits and guarantees in the light of the principle of nemo tenetur se detegere. The methodology addressed was defined by a literature review, followed by the qualitative form and the type of exploratory research, considering publications carried out in the time period from 2012 to 2024. Among the initial findings, the legal nature of the institute was verified, differentiating it from analogous institutes, such as plea bargaining, and analyzes the requirements for its validity, including the voluntariness of the agreement, the need for judicial approval and the observance of the fundamental rights of the collaborator. In addition, the research considers the challenges and criticisms that involve the use of plea bargaining as a means of obtaining evidence, especially with regard to the possibility of indirect coercion of the accused, the production of illicit evidence and the legal certainty of the agreements entered into. Therefore, despite being a relevant instrument in the fight against organized crime, its implication must be guided by respect for fundamental rights and guarantees, avoiding violations of the principle of nemo tenetur se detegere.