The response to the charges in criminal proceedings is one of the most relevant stages of criminal defense, as it represents the first opportunity for the accused to formally challenge the indictment filed by the Public Prosecutor’s Office.
A proper understanding of the importance of the response to the charges in criminal proceedings allows for risk assessment, the delimitation of defensive strategies, and the full exercise of the right to defense, in compliance with due process of law.
What is the response to the charges?
At this stage, the defense may:
- Raise preliminary matters, such as procedural nullities and objections;
- Request the dismissal of the indictment or summary acquittal, when the legal requirements are met;
- Indicate the evidence it intends to produce;
- Submit the list of witnesses.
Unlike civil proceedings, the response to the charges does not require the exhaustion of all defensive arguments. The accused may reserve strategic arguments for the final pleadings, in accordance with the principle of full defense.
Difference between the response to the charges and the preliminary defense
The Brazilian Code of Criminal Procedure provides for distinct procedural rules depending on the nature of the crime and the legal status of the accused, which directly impacts criminal defense strategy.
Ordinary procedure
Under the ordinary procedure, the process follows this sequence:
- The Public Prosecutor files the indictment;
- The judge decides on its admissibility;
- The accused is served with notice to present the response to the charges.
In this context, the response to the charges constitutes the first effective exercise of adversarial proceedings by the technical defense.
Special procedure for public officials
In crimes committed by public officials, the special procedure set forth in Article 514 of the Code of Criminal Procedure applies. In this scenario:
- The indictment is filed;
- The defendant is summoned to present a preliminary defense;
- The judge analyzes the admissibility of the charges after this initial submission;
- Only thereafter is the response to the charges allowed.
This procedure reinforces the right to defense and requires strategic and qualified performance by criminal defense counsel, particularly in identifying formal and substantive defects in the accusation.
Untimely filing of the response to the charges and the list of witnesses
Unlike civil proceedings, the untimely filing of the response to the charges does not automatically produce adverse effects against the accused.
Case law and specialized legal doctrine recognize that:
- There is no presumption of truthfulness of the facts alleged in the indictment;
- As a rule, there is no absolute preclusion of defense rights.
Furthermore, the Superior Court of Justice (STJ) has held that it is not permissible to sever the response to the charges in order to disregard only the list of witnesses or evidentiary requests when the defense brief has been received and examined by the court.
⚠️ Nevertheless, the following technical point deserves attention:
Preclusion is recognized when:
- The defense fails to request the production of evidence;
- The list of witnesses is not submitted;
- Evidentiary requests are made in a generic or imprecise manner.
This scenario reinforces the importance of careful technical action from the outset of criminal proceedings, especially regarding the delimitation of defense evidence.
Decision receiving the indictment
According to the settled understanding of the Superior Courts, the decision receiving the indictment is a simple interlocutory decision and does not require exhaustive reasoning by the judge.
However, such decision must contain minimum reasoning sufficient to:
- Allow understanding of the grounds for accepting the charges;
- Expressly address procedural nullities, grounds for dismissal of the indictment, and requests for summary acquittal raised in the response to the charges.
Failure to address these matters may give rise to future discussion regarding violations of due process of law and the adversarial principle.
The strategic importance of the response to the charges
The response to the charges — as well as the preliminary defense, when applicable — is fundamental to defining the defense strategy in criminal proceedings. At this stage, the defense:
- Establishes the main lines of technical action;
- Determines which witnesses will be heard;
- Identifies and raises procedural nullities;
- Assesses the need to raise objections such as:
- Lack of jurisdiction;
- Judicial bias;
- Lis pendens;
- Lack of standing;
- Res judicata.
These objections must be raised at the appropriate time, within the same deadline as the response to the charges, pursuant to Article 95 of the Code of Criminal Procedure.
Conclusion
The response to the charges in criminal proceedings is decisive in criminal defense and can significantly influence the course of the criminal action. A careful analysis of the accusation, the proper formulation of requests, and the correct identification of evidence are determining factors in protecting the rights of the accused.
Given the technical complexity involved, the assistance of a specialized professional is essential to ensure that the defense is exercised strategically, responsibly, and in strict compliance with constitutional and legal guarantees.
