Acting as a private prosecutor (assistant to the prosecution) in the protection of victims’ rights requires a criminal defense lawyer to adopt an approach that differs significantly from representing a defendant. While defense counsel may often benefit from the passage of time and procedural delays, victims rely on prompt action to preserve evidence related to the offense.
This article continues our series on the role of victims as assistants to the prosecution and examines the main evidentiary challenges encountered during criminal proceedings from the victim’s perspective.
The Burden of Proof in Criminal Proceedings
Article 156 of the Brazilian Code of Criminal Procedure establishes that the burden of proof is allocated according to each party’s allegations. A party asserting a fact must prove it, while the judge may, on their own initiative, order the production of evidence to clarify remaining doubts or fill evidentiary gaps.
For this reason, victims benefit from acting diligently from the very beginning of the investigation by gathering evidence of the harm or injury they have suffered. The following examples illustrate the importance of immediate action:
- Property crimes: The sooner the victim substantiates the financial loss or damage suffered, the better supported the police investigation will be and, consequently, any criminal charges that may later be filed.
- Offenses committed online: Evidence of online publication or dissemination should be preserved as early as possible, preferably through official or reliable methods capable of certifying the authenticity of the content, since online material may be altered or removed at any time.
Unlike defendants, for whom the passage of time may occasionally be advantageous, victims face time as an adversary. Their legal representation must secure evidence before relevant information becomes unavailable.
Evidentiary Challenges in Cases Involving Vulnerable Victims
The diligent work of an assistant to the prosecution becomes even more important when the victim is physically or mentally incapacitated, legally incapable, or deceased.
Brazilian case law has consistently recognized that a victim’s testimony carries significant evidentiary weight in cases involving property crimes and crimes against the person. In many situations, however, the victim is unavailable or unable to provide direct testimony. This may occur, for example, when:
- the victim died as a result of the crime;
- the victim is elderly and unable to fully understand or recall the events;
- the offense was committed against a legally incapacitated person, impairing their ability to describe what occurred.
In these circumstances, testimonial and documentary evidence become essential to compensate for the absence of the victim’s direct account. The court must assess the evidentiary record not only on the basis of the evidence that was actually produced but also in light of evidence that could not be obtained because of the defendant’s intentional conduct or the victim’s inability to testify.
The Role of the Assistant to the Prosecution in Gathering Evidence
Representing a victim follows a strategy that is fundamentally different from defending a criminal defendant. In many cases, judicial delays and evidentiary difficulties may ultimately benefit the accused, and defense counsel may legitimately take those circumstances into account when developing litigation strategy.
For victims, however, the opposite is true. The assistant to the prosecution should prioritize the timely preservation of evidence and the early collection of witness statements in order to prevent the loss or deterioration of relevant proof.
The victim’s level of participation depends on the type of criminal prosecution:
- Private criminal prosecution: The victim plays an indispensable role in moving the proceedings forward. Inaction may be interpreted as a waiver of the right to pursue the private criminal complaint.
- Public criminal prosecution (whether conditional or unconditional): Once charges are filed, the Public Prosecutor’s Office assumes responsibility for conducting the prosecution. Nevertheless, the victim remains a party with a direct interest in the outcome of the case.
In both situations, the victim’s diligent participation in the collection and preservation of evidence is essential to establishing criminal liability and safeguarding the victim’s legal rights.
Final Considerations
Effective legal representation of victims in criminal proceedings requires a strategy centered on the prompt collection and preservation of evidence. The assistance of a criminal lawyer from the earliest stages of the police investigation contributes to a more comprehensive evidentiary record and ensures the victim’s meaningful participation throughout the criminal process.
