When talking about the right against self-incrimination in the circles of people who did not study law, in general the conversations are related to the traffic law and the right of the driver not to have to submit to the breathalyzer test. In fact, this is an application well known by the Brazilian population. However, the scope of this right goes far beyond that hypothesis and its knowledge can avoid major inconveniences in criminal investigations. Hence the idea of ​​writing this article.

Without academic pretensions, the intention is to shed light on this important right, indicating situations in which it can also be adopted by citizens, in addition to the traffic law.

First, however, it is convenient to give a brief explanation of this important right.

When a crime is committed, it is up to the State, through the Chief of Police and the Prosecutor’s Office, to obtain the evidence that proves the commission of that crime, as well as who committed it. Such evidence consists of documents, testimony of witnesses, hearing of suspects, conducting expertise, among others. In this scenario, the right against self-incrimination^[1], also known as the right not to produce evidence against oneself, arises. According to him, the investigated person is under no obligation to actively collaborate with the State in obtaining evidence. And by failing to do so, this behavior cannot be interpreted to his disadvantage.

This means, for example, that if an investigated person is summoned to appear at a Police Station to provide clarification and decides to remain silent, this non-collaborative attitude towards investigations cannot, by itself, lead to his arrest. It also does not allow the police authority to conclude that silence is a sign that the person committed the investigated crime. The official needs to gather additional elements to come into that conclusion.

Well then. Having made this brief outline, lets now talk about situations in which the exercise of this right can avoid harmful consequences against a suspect in an investigation.

a) Media/cell phone/computers during execution of search and seizure warrants.

One of the ways by which the State obtains elements in an investigation is by means of search and seizure warrants. It is an order issued by a Judge, who authorizes the Chief of Police to enter in a residence/office to apprehend elements that are interesting to the investigation. This evidence can be paper documents, media (USB/CDs), mobile phones and computers.

And here, the right against self-incrimination gains special relevance. This is because, as the investigated person does not have the duty to actively collaborate with the State in discovering the facts, therefore, he does not have the duty to provide the password that may be protecting the media seized in his residence. He also has no duty to inform the unlocking password of cell phones, computers, notebooks seized during the investigation.

All of these items constitute rich sources of evidence. Scanned documents, photographs, conversations with other interlocutors through applications are usually stored in them. And all these elements can, obviously, serve as evidence to prove the commission of a crime. Thus, the refusal to provide password by the investigated person works as a means of defense against the investigative power of the State, preventing such incriminating elements from immediately coming to their knowledge.

It is important to emphasize that the refusal does not mean that the State will never access the existing files in the seized media. Against the refusal, electronic tools shall be used to discover the passwords. Upon discovery, incriminating content will inevitably be accessed. The point is that, depending on the length of the password, this discovery could take days, months or even years^[2]. And this directly impacts the course of an investigation. It may be, for example, that when the password is discovered, the facts have already been reached by statutes of limitations and can no longer be punished.

Therefore, in this context, the exercise of the right against self-incrimination by the investigated person by not providing passwords can act as an important defense tool, without this being interpreted to his disadvantage^[3].

b) Crimes committed by means of signature

Within the scope of companies, it is observed with some frequency the practice of crimes committed, through the falsification of signatures of third parties for the release of resources in favor of the author of the crime. In these cases, one of the ways to identify the forgery is through an expert examination called Handwriting Test. 

In this examination, a specialized expert analyzes the handwriting and the way the signature was made, to attest whether or not the document is true, as well as the author of the fraud.

However, for this examination to be carried out, first the police authority in charge of the investigations summons the true owner of the signature, as well as those suspected of having carried out its forgery, so that they sign several times on the paper. The intention is to identify which signature is true, as well as whether any suspect has carried out the forged signature. With these models in hand, the expert makes his analysis and forms his convictions.

And it is here that the right against self-incrimination again takes place. As we have seen, the suspect is under no obligation to actively collaborate with the investigations. If he responds to the subpoena of the police authority and provides his writing material, there is a risk that he is cooperating for his incrimination, which might lead into an indictment for forgery. In view of this, the suspect may refuse to provide the requested material^[4], without being penalized by the State with any encumbrance.

We have seen examples above, in addition to traffic laws, where the right to non-self-incrimination can be adopted by citizens who are being criminally investigated by the State. These are common situations for those who work in the criminal sphere, but little known by those investigated. Besides these, there are several others and their knowledge is important to spare targets from inconveniences occurred in criminal investigations.

Often the client is approached by the Police during a search and seizure warrant that took place at 6:00 am and, unaccompanied by his lawyer, ends up cooperating actively with the false expectation that, by acting in this way, he will be favored. In some cases it is possible that he is effectively favored. However, most of the time, when providing passwords to access cell phones and computers, experience shows that the client may be signing a true criminal sentence against himself.

Broadly speaking, these are the main topics we would like to address today. To find out about new situations involving this important right, as well as the best time to make use of it, come and have a coffee with us!

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^[1] This right is expressly enshrined in the Inter-American Convention on Human Rights (art. 8.2, “g”) and in the International Covenant on Civil and Political Rights (art. 14, n. 3), both valid throughout the Brazilian territory. Likewise, it is implicitly included in the Brazilian Federal Constitution, as a result of the dignity of the human person (art. 1, III), due process of law (art. 5, LIV), ample defense (art. 5, LV), the presumption of innocence (art. 5, LVII) and right to remain in silence (art. 5, LXIII).

^[2]  The website https://www.security.org/how-secure-is-my-password/ allows users to find out how long it takes to crack the password they use.

^[3] In this sense, check the following judgment in the STF: HC 192.380, Min. Dias Toffoli, j. 04/15/21. Along the same lines, now at the STJ: HC 580.664/RJ, Min. Nefi Cordeiro, Sexta Turma, DJ 11/12/2020.

^[4] In this sense, check out the following judgments of the STF: Ação Penal n. 567, Min. Gilmar Mendes, Plenary, DJ 11/21/2013 and HC n. 77,135, Min. Ilmar Galvão, Primeira Turma, DJ 09/08/98. Likewise, check out the following judgment in the STJ: HC n. 107285/RJ, Min. Laurita Vaz, Quinta Turma, DJ 2/7/11.