The proliferation of proceedings investigating the same conduct across different spheres—criminal, civil, administrative, and tax—has made the sharing of evidence an increasingly relevant procedural issue.
When evidence produced in one proceeding is transferred to another, questions arise that legal scholarship answers with greater precision than the case law: does such a transfer respect due process, adversarial proceedings, and the right to a full defense? What requirements legitimize borrowed evidence? And what happens when those requirements are relaxed in the name of efficiency?
Borrowed Evidence or Shared Evidence?
Brazilian legal scholarship distinguishes between the two concepts, even though the Superior Courts often treat them as synonymous—including within the text of their own decisions.
In a single-judge decision, Justice Benedito Gonçalves of the Superior Court of Justice (STJ) addressed the distinction more rigorously, relying directly on the work of Eugênio Pacelli. According to the Justice, borrowed evidence is the broader category: any evidence transferred from one proceeding to another, regardless of the manner in which the transfer occurs or whether prior authorization exists. Shared evidence, by contrast, is a specific subset: it presupposes prior authorization from the court of origin and preserves any confidentiality restrictions imposed in the original proceeding.
This distinction determines the degree of judicial control required over the circulation of evidence and the level of protection afforded to confidential information as it moves beyond the boundaries of a single case. Treating the two concepts as equivalent—as the prevailing case law does—eliminates that control without any consistent theoretical justification.
What the Superior Courts Have Held
STJ Precedent No. 591
In 2017, the STJ issued Precedent No. 591, consolidating the understanding that the use of borrowed evidence requires authorization from the competent court and respect for adversarial proceedings and the right to a full defense.
The precedent, however, reproduces the conceptual imprecision that characterizes the jurisprudence on the subject. By requiring judicial authorization as a condition for borrowed evidence—when, according to legal scholarship, such authorization is a requirement only for shared evidence—the STJ collapsed the two concepts into one without acknowledging the distinction between them. The result is a technically inconsistent precedent that standardizes the treatment of legal figures governed by different legal regimes.
STF Theme 990
In November 2019, the Federal Supreme Court (STF) decided Extraordinary Appeal No. 1,055,941 and established the binding thesis of Theme 990: it is lawful for tax and banking data obtained by the Federal Revenue Service and other administrative bodies to be shared with police authorities and the Public Prosecutor’s Office without prior judicial authorization.
The decision had a profound impact on the theoretical distinction that still survived in legal scholarship. If shared evidence was distinguished from borrowed evidence precisely because it required judicial authorization, Theme 990 eliminated that distinguishing feature altogether.
From 2019 onward, the distinction between the two concepts became operationally irrelevant: both borrowed and shared evidence came to be admitted without prior judicial authorization, leaving adversarial participation by the parties as the sole remaining criterion of legitimacy.
Preclusion, Nullity, and the Hollowing Out of Adversarial Proceedings
With the conceptual distinction weakened by Theme 990, the debate over the validity of borrowed evidence shifted entirely to the terrain of adversarial proceedings and the right to a full defense. It is precisely here that the defensive jurisprudence of the Superior Courts reveals its most problematic dimension.
The STJ has consolidated the understanding that the adversarial participation required in cases of borrowed evidence is deferred—that is, exercised after the evidence has been incorporated into the record, rather than during its production. In practice, this means that when witness testimony is transferred from one proceeding to another, the defense may challenge the evidence only after it has been admitted into the case file; it does not participate in the examination of the witness, raise objections regarding impartiality, or influence the manner in which the evidence is produced.
Under this model, adversarial proceedings become a procedural fiction—formally preserved, yet substantively emptied of meaning.
In more recent cases, the STJ has gone even further. It has refused to recognize nullity even when the defense lacked full access to the shared evidence, conditioning any declaration of nullity upon proof of concrete prejudice and timely objection at the first available opportunity. This cumulative requirement—demonstrating prejudice while objecting promptly—imposes a burden that, in many cases, can only be fulfilled through complete access to the evidence itself. The STJ therefore creates a paradox: it requires the defense to demonstrate prejudice caused by evidence to which it has not been granted full access.
The Adversarial Proceedings That Remain—and What They Represent
The trajectory of Brazilian criminal procedure as shaped by the defensive jurisprudence of the Superior Courts has increasingly developed at the expense of defendants’ procedural guarantees.
In pursuit of greater efficiency and speed in judicial proceedings, the system has progressively abandoned meaningful participation in the production of evidence, as well as the requirement of judicial authorization for the sharing of information—including confidential information protected by the Constitution.
Under this framework, the only form of adversarial participation available to the parties is the challenge to the admission of shared evidence, a challenge that is increasingly likely to be rejected. In order to secure the constitutional value of a reasonable duration of proceedings, effective adversarial participation is sacrificed. The parties’ involvement in the production of evidence becomes secondary, while a simple electronic notice through the court system is deemed sufficient to validate all evidence produced and transferred at the discretion of public authorities.
What is emerging in Brazilian criminal procedure is the replacement of effective adversarial proceedings with a merely formal version, exercised only after the fact and with limited prospects of success.
The prevailing jurisprudential trend constructs a model in which the defense’s participation in the formation of the evidentiary record has become accessory. Electronic notification through the judicial system functions as a sufficient mechanism for validating evidence introduced unilaterally, while challenges to such evidence—the only adversarial tool remaining to the defense—are systematically rejected by the courts.
The argument sustaining this model is the reasonable duration of proceedings—a legitimate value, but one that the Constitution does not elevate into a justification for sacrificing adversarial guarantees. Adversarial proceedings are not satisfied by the mere formal opportunity to speak. What is exercised over evidence that has already been admitted, produced without the defense’s participation, and insulated by a strong tendency toward the rejection of challenges is not true adversarial proceedings. It is merely the appearance of them.
