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Lawyer is prevented by judge from recording session in Jury Court

The judge ordered that the recording be stopped and that any recordings already made be deleted.

From the Editors

 

Friday, February 14, 2025

 

Updated at 10:58

 

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On the 4th, criminal lawyer José Lucas Mussi was prevented by the judge of the Criminal Court of the Jury of the Capital/SC from recording a trial session. In addition to interrupting the video, the judge ordered the lawyer to delete the recordings he had made up until then.

 

After the judge's refusal, the lawyer argued that, according to art. 367, § 6º of the CPC , applied subsidiarily to Criminal Proceedings, the hearing could be recorded. He states that he also included decisions from the STF and STJ that authorize the defense to record the acts in order to produce evidence of any irregularities that occur during the trial.

 

Read more

Can a lawyer record a hearing or not? See what the law says

 

He mentioned that even the Kiss Nightclub case, which had national repercussions, had irregularities, and that is why the defense uses cell phones to record as a work tool, and as a way of producing evidence, for the broad defense and the fullness of the defense.

 

"The defense understands that this decision, with all due respect, violates the principle of legality, because it is provided for in both the legal provisions we mentioned and in the Federal Constitution itself. That is why the defense is recording. We were also honest enough to inform the MP and Your Excellency that we were going to record. The law ensures that we do not need to notify them."

 

The lawyer told Migalhas that, in order to continue the work, he interrupted the recording and deleted the videos, as determined by the judge.

 

What does the law say?

 

The  CPC , in its article 367, §§ 5º and 6º, expressly deals with recordings:

 

§ 5 The hearing may be recorded in full in image and audio, in digital or analog media, as long as it ensures rapid access by the parties and the judging bodies, in compliance with specific legislation.

 

§ 6 The recording referred to in § 5 may also be carried out directly by either party, regardless of judicial authorization.

 

It is also worth noting what the  CPP provides  in its art. 405, §§ 1º and 2º, regarding the recording of the investigated party's testimony:

 

§1   Whenever possible, the recording of the statements of the investigated, indicted, injured party and witnesses shall be made by means or resources of magnetic recording, stenotype, digital or similar technique, including audiovisual, designed to obtain greater fidelity of the information. (Included by Law No. 11,719, of 2008)

 

§2 In the case of recording by audiovisual means, a copy of the original recording will be sent to the parties, without the need for transcription.

 

Jurisprudence

 

In a decision issued in 2018  ( HC 428,511 ) , the STJ stated that, based on  law 11,719/08 , which amended the CPP, audiovisual recording for recording statements is not optional, but mandatory.

 

The reporting minister, Ribeiro Dantas, highlighted that the expression "whenever possible", contained in the device, means that registration without recording will only be admitted in cases where the resource is not available.

 

In the case tried by the 5th panel, the hearing was annulled due to the lack of recording of the evidentiary hearing.

 

Recording prevented

 

The topic brings us back to a curious case  that occurred in 2017, also related to a judge who prevented a lawyer from recording a hearing. But what  draws attention are the well-known characters: Judge Sergio Moro prohibited lawyer Cristiano Zanin from recording a hearing.

 

The then magistrate stated that there was a "serious irregularity" in the hearing of Fernando Henrique Cardoso, because it was allegedly recorded by Zanin, and said that the recordings required judicial authorization.

 

In response, Cristiano Zanin wrote to the OAB/PR saying that the judge's decision to prohibit the recordings clashed with what is provided for in the CPC.

 

At the time, the case was reported by Migalhas .

 

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Can a lawyer record a hearing or not? See what the law says

See what the CPC and CPP have to say on the subject.

From the Editors

 

 

The recording of a hearing by the lawyer ended up creating obstacles between the lawyer, the judge and the Public Prosecutor's Office in Rio de Janeiro.

 

The hearing was suspended after the prosecutor informed the judge that the lawyer was recording the video without authorization. The case involved criminal lawyer Sergio Figueiredo, who posted the video on social media.

 

At the time, he told the judge that there was no impediment to recording, and that the CPC allowed him to record, to which the judge responded: "If you continue recording, we will interrupt the hearing.

 

Look:

 

 

 

The video raises the debate: can lawyers record hearings or not?

 

What does the law say?

 

The  CPC , in its article 367, §§ 5º and 6º, expressly deals with recordings:

 

§ 5 The hearing may be recorded in full in image and audio, in digital or analog media, as long as it ensures rapid access by the parties and the judging bodies, in compliance with specific legislation.

 

§ 6 The recording referred to in § 5 may also be carried out directly by either party, regardless of judicial authorization.

 

It is also worth noting what the  CPP provides  in its art. 405, §§ 1º and 2º, regarding the recording of the investigated party's testimony:

 

§1   Whenever possible, the recording of the statements of the investigated, indicted, injured party and witnesses shall be made by means or resources of magnetic recording, stenotype, digital or similar technique, including audiovisual, designed to obtain greater fidelity of the information.  (Included by Law No. 11,719, of 2008)

 

§2 In the case of recording by audiovisual means, a copy of the original recording will be sent to the parties, without the need for transcription.

 

 

 

Can a lawyer record a hearing? See what the law says. (Image: Migalhas Art)

Jurisprudence

 

The STJ has case law on the subject. In a decision issued in 2018  ( HC 428,511 ),  the Court  highlighted  that, based on  law 11,719/08 , which amended the CPP, audiovisual recording for the registration of statements is not optional, but rather mandatory.

 

The reporting minister, Ribeiro Dantas, highlighted that the expression "whenever possible contained in the device means that registration without recording will only be admitted in cases where the resource is not available.

 

In the case tried by the 5th panel, the hearing was annulled due to the lack of recording of the evidentiary hearing.

 

Read more

STJ annuls evidentiary hearings that were not recorded

 

Hearing interrupted

 

In the case reported at the beginning of this report, the hearing was suspended for around 40 minutes, according to the lawyer.

 

The lawyer says that he went to the OAB, where he printed the CPC provision, in addition to the STJ's understanding on the subject.

 

The hearing then proceeded normally, as did the lawyer's recording.

 

Recording prevented

 

The topic takes us back to a curious case that occurred in 2017, also related to a judge who prevented a lawyer from recording a hearing.

 

But what draws attention are the well-known characters.

 

 

 

In 2017, then judge Moro prohibited then lawyer Zanin from recording hearings without authorization. (Image: Ton Molina /Fotoarena/Folhapress | Carlos Moura/SCO/STF)

Seven years ago, Judge Sergio Moro prohibited lawyer Cristiano Zanin from recording a hearing. The then judge stated that there was a serious irregularity in the hearing of Fernando Henrique Cardoso, because it was allegedly recorded by Zanin, and said that the recordings required judicial authorization.

 

No party has the right to record audio or video of the hearing without express authorization from this court. The parties are hereby warned, based on article 251 of the Code of Criminal Procedure, not to make video recordings of the hearing without authorization from the court , said Moro.

 

In response, Cristiano Zanin wrote to the OAB/PR saying that the judge's decision to prohibit the recordings conflicted with the provisions of the CPC. He also argued that the legal provision cited by Moro for the prohibition (art. 251 of the CPC)  does not contain any provision on the subject .

 

At the time, the case was  reported  by Migalhas.

 

 link: https://www.migalhas.com.br/quentes/400410/advogado-pode-ou-nao-gravar-audiencia-veja-o-que-diz-a-lei