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PLEA BARGAINING IN BRAZIL: [IM]PROVING CRIMINAL TRIALS THROUGH THE BALANCE BETWEEN UTILITARIAN JUSTICE AND THE DEFENDANT’S FUNDAMENTAL RIGHTS
This doctorate dissertation aims to prove that the introduction of plea bargaining as a type of criminal proceeding in Brazil would be successful, reaching the expected balance between the need for justice (procedural utilitarianism) and defendants' fundamental rights. Major claims against the Brazilian criminal justice system were identified, showing that caseload pressure and an outdate legislation are the principle causes of the inefficacy and lack of legitimacy of criminal trials. The study presents an overview of Brazilian criminal trials, detecting relevant differences between practices in that country and in the U.S. American plea-bargaining was used as a model of comparison to show that practices in the U.S. rely on utilitarian philosophical roots. As a very innovative aspect, this research found the so-called plea-bargaining's core, after extracting the nuclear practices from state and federal models of American plea-bargaining. To identify the compatibility of American plea-bargaining with defendants' human rights, there is also a comparative approach with the American Convention on Human Rights and the Universal Declaration of Human Rights. Following the evaluation of American plea-bargaining, this doctorate research approached consensual justices in Brazilian criminal trials, assessing the so-called civil composition of damages, penal transaction, conditional trial's deferral, and prized testimony, explaining why the mentioned practices are not similar to American plea-bargaining. The study also evaluates plea-bargaining's model outlined in the New CPP's Draft, describing and confronting criticisms on its probable adoption by Brazil. Additionally, the study assesses the results of a survey delivered among judges, prosecutors, public defenders and layers on their familiarity with plea bargaining. In its final chapter, considering the evaluation made throughout its content, this doctorate dissertation points out the aspects that an accurate model of plea-bargaining must contain, proving its thesis statement that it is possible to reach the balance between defendants' fundamental rights and the need for justice (efficacy of the criminal justice) in Brazil.