Page 1 of 17

Advances in Social Sciences Research Journal – Vol. 10, No. 1 (ISSN 2055-0286)

Publication Date: January 25, 2023

DOI:10.14738/assrj.101.13822.

D-Souza, J. L. C., & Da-Silva, J. V. B. (2023). Guilty by Anticipation: Distortions on the Presumption of Innocence in First Appearance

Hearings. Advances in Social Sciences Research Journal, 10(1). 228-244.

Services for Science and Education – United Kingdom

Guilty by Anticipation: Distortions on the Presumption of

Innocence in First Appearance Hearings

Jaime Luiz Cunha de Souza

Graduate Program in Political Science.

Institute of Philosophy and Humanities, Federal University of Pará, Brazil

José Vicente Braga da Silva

Graduate Program in Sociology and Anthropology

Institute Of Philosophy and Humanities, Federal University of Pará, Brazil

ABSTRACT

This article addresses the dynamics of first appearance hearings and analyzes how

the various actors involved in the process influence judges’ decisions. The analysis

focuses on the distortion of the presumption of innocence principle based on racial

factors, education levels, the criminal record of the arrested person and the type of

offense that led to the arrest. Researchers collected data through in-person

observations of 63 hearings that took place in the Criminal Court1 of the city of

Belém-Pará-Brazil, from January and March 2020. Results show that the

presumption of innocence has little weight in first appearance hearings and factors

related to race, education level, criminal background and involvement with drugs

often cause the accused to be held in pre-trial detention before being judged and

receiving a formal punishment.

Keywords: Precautionary measures. Presumption of innocence. Prison. Trial.

INTRODUCTION

First appearance hearings consist of presenting people arrested in flagrante delicto (in the act

of committing a crime) to the courts within up to 24 hours of arrest. During these proceedings,

the judge assesses the need to maintain the arrest, as well as and the legality of the

circumstances under which the arrest occurred (Souza & Nunes, 2018). This article analyzes

the actions and dynamics of and between the various actors who participate in these hearings.

We focus our analysis on the factors that influence judges’ decisions to move the case from

flagrante delicto to a pre-trial detention or to apply alternative punitive measures.

The first “first appearance hearings” date back to 1950, when the Council of Europe created the

European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),

which established a series of recommendations on how to “present” the prisoner to a judicial

authority immediately after arrest (Lino & De Oliveira Filho, 2017).

1 The set of institutions that make up the state’s justice system is called the Court of Justice of the State of Pará,

which in turn is subdivided into Forums according to the type of specific competence: Civil Forum and Criminal

Forum. The forums are subdivided into varas(courts), which, in the case of the criminal forum, are criminal courts.

The courts are organized by specialty: criminal execution courts, courts for police investigations and

precautionary measures, domestic violence courts, and may have several courts assigned to the same specialty,

such as the various domestic violence courts in the Belém Forum, each with its own chief judge.

Page 2 of 17

229

Souza, J. L. C. & Silva, J. V. B. (2023). Guilty by Anticipation: Distortions on the Presumption of Innocence in First Appearance Hearings. Advances

in Social Sciences Research Journal, 10(1). 228-244.

URL: http://dx.doi.org/10.14738/assrj.101.13822

This convention had a great repercussion on all continents, giving rise, in 1969, to the American

Convention on Human Rights, better known as the Pact of San José of Costa Rica, whose

agreements only effectively entered into force in 1978, becoming a reference for all countries

on the American continent (Francischetto & Aquino, 2018).

Brazil became a signatory of this convention in 1992, when the agreements were finally

incorporated into the Brazilian legal agenda. However, the regulation of first appearance

hearings only occurred in 2015, when Resolution No. 213/2015 of the National Council of

Justice (CNJ) was adopted; this resolution defined the procedures to be adopted during these

hearings (Silvestre, Jesus and Bandeira, 2021; Marden &; Menezes, 2019). Since then, we

observe a resistance to the adoption of the principles underlying this treaty within the Brazilian

court system, especially among the actors who participate in judiciary proceedings. Some of

this resistance is explicit and other forms are implicit. To understand the dynamics surrounding

first appearance hearings and their consequences on judges' decision in Pará state, we sought,

through direct observations, to capture the patterns of choice and selectivity related to

criminals, their crimes, and how they are punished.

REVIEW OF THE LITERATURE

The Logic Behind How Courts Operate

One of the foundations of the rule of law is the presumption of innocence, according to which

everyone is innocent until proven guilty. Formally, this principle guarantees that all have the

right to security mechanisms that can protect them from arbitrary detention, and that detention

can be avoided while the accused awaits trial. In this case, it is the onus of the state, represented

by the prosecutor (Public Prosecutor's Office, Ministério Público) to show that detention is

necessary (Myers, 2017; Jones, 2013; Diamond et al., 2010).

Beckett and Herbert (2010) comment that keeping the accused in prison before trial should be

a preventive measure of last resort; however, in practice, in Brazil, imprisonment is largely

applied without the arrested individual’s guilt being fully established. Manikis and De Santi

(2019) explain that although judges have several means of punishing the accused, such as

establishing bail, applying electronic monitoring, directly imprisoning the accused after arrest

occurs with great frequency. The authors also argue that this practice does not lead to a

reduction in crime rates and contributes to the high costs of maintaining in custody.

According to Kuller and Dias (2019) this punitive mentality persists and is still very ingrained

in the Brazilian courst system. Junior et. al, (2014) and Azevedo, Sinhoretto and Silvestre

(2022) argue that first appearance hearings have not brought the long-awaited reduction crime

and incarceration rates. As Masi (2015) points out, there is a prevailing tendency towards pre- trial imprisonment following flagrant arrest, even when the crimes are not too serious, or the

accused are arrested for selling small drug quantities.

Kellough and Wortley (2002) and Diamond et al. (2010) point out that public opinion generally

supports routine incarceration – since the practice is justified as a way to guarantee social order

and signals to society that state institutions are committed to fighting crime. According to

Karnow (2008) even when the judge opts for the release of the accused, the conditions of

release involve restrictions so harsh that the accused are left in a constant state of isolation and

Page 3 of 17

230

Advances in Social Sciences Research Journal (ASSRJ) Vol. 10, Issue 1, January-2023

Services for Science and Education – United Kingdom

tension. Yet, in the eyes of the general public, these measures are seen as overly lenient and are

perceived as impunity; in this case, only incarceration seems to signal punishment and “justice.”

This eagerness for incarceration, shared by the public and those who uphold the law, goes

against the notion of “risk” proposed by Garland (2008) and Kellough and Wortley (2002).

Specifically, this eagerness continues to highlight the assumptions embedded in the

“disciplinary” society first described by Foucault (1987). In other words, in most modern

societies the inclination toward risk management is at the center of concerns (Deleuze, 1992),

such that incarceration is substituted by other mechanisms. Yet, in peripheral countries the risk

argument is, in fact, most often used to justify maintaining incarceration policies.

Incarceration decisions are usually based superficial risk analyses or no analysis at all. In

reality, first appearance hearings are based on a moral evaluation the accused’s past and

present. As Kellough and Wortley (2002) clarify, people perceived negatively by the police are

much more likely to be arrested and to move directly from arrest in flagrante delicto into pre- trial detention. According to these authors, certain information presented by the police has a

significant impact on hearings’ outcomes because it exposes the accused’s background. Yet, in

general, this information has nothing to do with the crime in question; even still, the police

account at the time of arrest influences the prosecutor's action and the type of punishment the

judge will determine.

Manikis and De Santi (2019) argue that judges, prosecutors, and even the police attach great

importance to the eventual protection of the public even if it sacrifices the fundamental rights

of the accused. Although the judges' main role is to safeguard against the arbitrariness

sometimes practiced by the police, little time is given to determine if the accused with be placed

in pre-trial detention. This decision occurs in the few moments before the hearings when the

judge, the prosecutor, and the lawyer or public defender review (for the first time) the arrest

in flagrante and the accused’s criminal record (Kellough & Wortley, 2002). According to these

authors, this “informal” moment is decisive in evaluating the degree of restrictions thought to

be necessary to neutralize the risk that the accused supposedly represents.

Ideally, the courts, and more specifically the criminal courts, should be places where the state

manifests itself as the great dispenser of justice; furthermore, it’s agents, who are formally

positioned as adversaries should have in common a strong moral commitment to upholding

legal norms and maintaining justice for all actors. However, court practices show that attention

to formal rules is only one among many factors that contribute to judges' decisions. In reality,

much of the courts’ operation is governed by informal rules. (Myers, 2015; Metcalfe, 2016). In

the same vein, Ulmer (2019) observes that outcomes have more to do with stakeholders’

ideologies and alliances than with upholding any broader principle like justice.

Statements that follow the same line of reasoning can be found in Williams (2002), Hannah- Moffat (2013) and Bourdieu (2001). They state that despite the presence of some

characteristics of a bureaucratic organization, it is not appropriate to treat the court

environment as a classic bureaucracy. They explain that in addition to being constituted by a

set of formal rules, and by specialists who form the staff, its core operation is also informed by

informal rules that enable its everyday operation (Faria; Meneghetti, 2011).