PARADOXO ENTRE PODERES INSTRUTÓRIOS DO JUIZ E ÔNUS DA PROVA

Abstract

This article aims to discuss the paradox that the judge faces at the end of the investigation phase, when still in doubt about a certain fact: production of evidence ex officio or solving the case basing on burden of proof. The study was developed through a bibliographic survey; the collected information was interpreted by applying the deductive method. This research showed that procedural law we look for feasible truth, which most approach the absolute truth that the circumstances allow. The rules on the burden of proof, on the other hand, consist of subsidiary rules of judgment, that cannot be used by the judge in an arbitrary way if he can clarify a doubt ex officio, otherwise the evidence will not reflect the feasible truth. In fact, to determine the production of evidence, the judge will verify, in the specific case, the presence of three presuppositions: necessity, utility and possibility. In addition, when a judge produce evidence, it should not be done with arbitrariness, since he should attain to other principles that pertain the legal system, such as, for example, the principles of contradictory and the duty to state the reasons that the judicial decisions are based upon. Therefore, it can be concluded that the presented paradox can be solved by the following criterion: if the evidence is necessary, useful and possible, the judge must determine it ex officio, waiving the judgment based on the rules on the burden of proof until the eventual absence of one of the aforementioned assumptions.