1. Definition, Concept, and Legal Nature
Borrowed evidence can be defined as the procedural act by which evidence produced in a given proceeding is transferred to another, by means of a certificate or authentic copy, beginning to produce legal effects in the latter. From the perspective of classical and contemporary doctrine, borrowed evidence does not constitute an autonomous "means of proof," but rather a method of transport for an already existing means of proof.
Regarding its legal nature, the prevailing understanding is that borrowed evidence enters the destination proceeding in the form of documentary evidence, regardless of its original nature (whether testimonial, expert, or documentary). However, the probative value that the magistrate will assign to this element must consider the effectiveness the evidence had in the original proceeding, mitigated by the scrutiny of the adversarial process exercised in the destination proceeding.
2. Historical Evolution and Comparative Law
Historically, borrowed evidence faced resistance in the Brazilian legal system. During the validity of the 1939 and 1973 Codes of Civil Procedure, there was no express legal provision regarding the institute, which led part of the doctrine to question its validity in light of the principle of judicial immediacy. The admission of the institute was initially consolidated through jurisprudence and doctrine, based on the principles of procedural economy and the unity of jurisdiction.
In Comparative Law, the Italian system (efficacia di prova colhida in altro processo) and the North American system (collateral estoppel) influenced the perception that the real truth sought by the State must be utilized in multiple spheres, avoiding contradictory decisions on the same facts.
3. Legal Provision and Constitutional Foundation
The definitive formalization of the institute in Brazil occurred with the advent of the 2015 Code of Civil Procedure (CPC/2015), which in its Article 372 establishes:
"Art. 372. The judge may admit the use of evidence produced in another proceeding, assigning it the value deemed appropriate, observing the adversarial principle."
On the constitutional level, borrowed evidence finds support in Article 5, item LXXVIII (principle of reasonable duration of the process) and, simultaneously, finds its limits in Article 5, item LV (principles of the adversarial system and full defense) of the 1988 Federal Constitution. In Criminal Law, although the Code of Criminal Procedure (CPP) is silent, its application is admitted by analogy (Art. 3 of the CPP), respecting the stricter fundamental guarantees of the criminal sphere.
4. Practical Application and Consolidated Jurisprudence
The practical application of borrowed evidence requires meeting rigorous requirements established by the Superior Courts. The current understanding of the Superior Court of Justice (STJ) and the Supreme Federal Court (STF) has evolved significantly:
- Identity of Parties: Previously, it was required that the parties be the same in both proceedings. However, the Special Court of the STJ (EREsp 1.250.620/RS) established the understanding that the identity of parties is not an indispensable requirement for the admission of borrowed evidence. The determining factor is that the party against whom the evidence will be used has had the opportunity to exercise the adversarial right, whether in the original or the destination proceeding.
- Observance of the Adversarial Principle: This is a sine qua non condition. The borrowing of evidence produced unilaterally or secretly is not admitted without guaranteeing the opposing party the right to challenge it or produce counter-evidence.
- Borrowed Evidence in Criminal Proceedings: The STF (HC 127.483) admits the use of evidence collected in civil or administrative proceedings within the criminal scope, and vice versa, provided that the evidence was produced before a competent court and with strict observance of constitutional guarantees. In the case of telephone interceptions, the STF understands that sharing for administrative disciplinary purposes is possible.
- Labor Scope: The Superior Labor Court (TST), through Jurisprudential Orientation (OJ) 278 of SDI-1 (applied analogously), and abundant jurisprudence, admits borrowed evidence (especially expert reports) for the characterization of unhealthiness or hazardous conditions when working conditions are identical.
5. Related Principles and Doctrinal Divergences
The institute dialogues directly with the following principles:
- Principle of Instrumentality of Forms: The process is a means, not an end in itself. If the evidence is valid, it should be utilized.
- Principle of Probative Effectiveness: Evidence seeks the truth of the facts; a fact proven in one proceeding does not change by the simple change of case files.
- Principle of Immediacy: This is the main point of divergence. Critics argue that the judge of the destination proceeding did not witness the collection of the evidence (e.g., witness testimony), which could weaken their conviction. The majority doctrine counters by stating that the judge has free motivated conviction to value the evidence according to the evidentiary set.
6. Contemporary Relevance and Practical Impacts
In the era of electronic judicial proceedings and the search for dejudicialization or extreme speed, borrowed evidence proves to be an indispensable instrument of procedural management. It prevents instructional bis in idem, reduces costs for the parties and the State, and mitigates the risk of conflicting sentences on the same factual basis (such as in environmental disasters or collective consumer actions).
The practical impact is the optimization of hearing schedules and the rationalization of expert activity, transforming the judicial process into a more integrated and less compartmentalized system.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Art. 5, LV and LXXVIII.
- BRAZIL. Law No. 13.105, of March 16, 2015. Code of Civil Procedure. Art. 372.
- STJ. EREsp 1.250.620/RS, Rel. Min. Luis Felipe Salomão, Special Court, judged on 06/04/2014. (Relativization of the identity of parties).
- STF. Inq 2725/SP, Rel. Min. Teori Zavascki. (Sharing of evidence and adversarial principle).
- STJ. Repetitive Theme 630. (Deals with the effectiveness of borrowed evidence in specific contexts).
- DIDIER JR., Fredie. Course on Civil Procedural Law. Salvador: JusPodivm, 2023.
