Production of ex-officio evidence by the judge in criminal prosecution

In the institution of the Democratic State of Law, the accusation system gained strength, being positiveized by the Federal Constitution of 1988. In this procedural model, there is a clear separation between prosecution and defense, the impartial role of the judge and the path of the process to, in fact, , lead to the search for justice, whose evidence acquires an elementary role, capable of bringing the elucidation of the facts and behaviors that affect the entire process and the sentence. However, the Brazilian Code of Criminal Procedure was promulgated in 1941, that is, in a period long before the promulgation of the Federal Constitution of 1988, so that the rules must undergo constant analysis to verify their reception by the new constitutional text. Thus, this work aims to analyze the constitutionality of Article 156 of the Code of Criminal Procedure, with special attention to item I, according to which the proof of the allegation will be up to the person making it, but the judge is entitled to act ex officio to order, even before the criminal action is initiated, the anticipated production of evidence considered urgent and relevant, in clear offense to the accusatory model and the impartiality of the judge. This work aims to point out the criticisms and contribute to the debate on the constitutionality (or unconstitutionality) of the role attributed to the judge with regard to evidence that is still in the preliminary and investigation phases. Considering that the judge may produce ex-officio evidence both in the course of the investigation, which is called advance evidence, to resolve doubts of relevance and urgency, as to the end of the process.