74% of drug trafficking arrests have only police officers as witnesses.

Sergio Rodas, from Conjur - Over 70% of arrests for drug trafficking have only one type of witness: the police officers who participated in the operation. And 91% of the cases resulting from these arrests end in conviction. The problem, for those who study the area, is that arresting and convicting based primarily on the testimony of officers violates the principles of adversarial proceedings and the right to a full defense, making the acquittal of an accused person almost impossible.

Both the Center for Violence Studies at the University of São Paulo (NEV-USP) and the judge of the Criminal Enforcement Court of Manaus, Luís Carlos Valois, in his doctoral thesis at the same institution, found that 74% of arrest reports did not contain testimony from witnesses other than the police officers involved.

In the study entitled "Pretrial Detention and Drug Law – a study on drug trafficking arrests in the city of São Paulo," NEV-USP analyzed 667 arrest reports for possession of narcotics in the city of São Paulo, referring to the months of November and December 2010 and January 2011. They represented 70% of the total of this type of arrest during that period.

Valois examined 250 such documents in 2015, 50 from each of the following cities: São Paulo, Rio de Janeiro, Belo Horizonte, Porto Alegre, and Brasília. The judge used the first 50 drug trafficking-related arrest reports he found in the criminal court offices of those capitals. His doctoral thesis became the book *O direito penal da guerra às drogas* (D'Plácido).

Both studies arrived at the same number: 74% of the cases relied solely on the testimony of the police officers who made the arrest. Without other accounts, the police chief rarely releases the suspect. In fact, in 86,64% of the cases monitored by NEV-USP, the accused remained in custody throughout the proceedings.

Article 304, paragraph 2, of the Code of Criminal Procedure authorizes the drafting of an arrest report without civilian witnesses only in exceptional cases. However, this has become the rule. Since arrests rarely have other evidence of the crime—NEV-USP points out that 85% of the reports do not have photos—and since any drug seizures do not prove intent, the accused end up being imprisoned almost exclusively based on the word of the police officers.

Furthermore, they end up being convicted in the vast majority of cases, even though Article 155 of the Brazilian Code of Criminal Procedure establishes that the judge cannot "base his decision exclusively on the information gathered in the investigation." In the 604 criminal proceedings resulting from arrests in flagrante delicto without civilian witnesses that NEV-USP monitored, the defendants were convicted in 91% of cases. In 6% of them, there was a reclassification of the charge, and in 3%, acquittal. The US has a similar percentage: those accused of trafficking are convicted in 93% of cases, according to the Bureau of Justice Statistics, an agency of the Department of Justice.

Brazilian jurisprudence has supported arrests and convictions based solely on police testimony. In the judgment of Habeas Corpus 76.557, the Second Panel of the Supreme Federal Court understood that there was no irregularity in the fact that the police officer who participated in the operation was a witness. According to the justices, this does not characterize suspicion or impediment of the agent. The Court of Justice of Rio de Janeiro, in turn, consolidated the interpretation in Summary 70: "The fact that the oral evidence is restricted to the testimonies of police authorities and their agents does not invalidate the conviction."

NEV-USP also indicates that in 94,76% of convictions, judges impose prison sentences, even though 58,73% of punishments are for less than four years — which would authorize serving the sentence in an open regime or imposing restrictive punishments if the convicted person is not a repeat offender or a member of a criminal organization.

Therefore, it is not surprising that 28% of Brazilian prisoners are behind bars for drug trafficking, according to the National Penitentiary Department, an agency of the Ministry of Justice. Article 33 of Law 11.343/2006 is the crime that contributes most to overcrowding (occupancy rate of 167%) and to the deficit of 250.318 prison spaces.

Weakened defense
However, basing arrests and convictions almost exclusively on police testimony violates the constitutional guarantees of due process and the right to a full defense. After all, if the officers themselves made the arrest, how could they objectively testify about their own actions?

According to the president of the Brazilian Bar Association, criminal lawyer Técio Lins e Silva, police evidence is insufficient to lead to arrests and convictions. And this was the prevailing understanding in the past in legal doctrine and jurisprudence, the criminal lawyer reports.

"A review of the Supreme Federal Court's old jurisprudence reveals [then-Minister] Aliomar Baleeiro granting Habeas Corpus to halt proceedings and annul convictions based solely on police evidence. However, prejudice in the Criminal Justice system has become so overwhelming that the possibility of being acquitted in drug-related crimes is almost impossible. The accused of trafficking begins the process already condemned, regardless of whether there is evidence or not," he accuses.

Trained under the ideology of the war on drugs, which uses narcotics as a scapegoat for other social problems, and operating under constant tension, it is rare for a police officer to be considered an impartial witness, Valois states in his book.

Because he participated in the approach and the arrest, the police officer should not be heard as a witness, but rather as an informant, argues Salo de Carvalho, a professor at the Federal University of Rio de Janeiro. This status is similar to that of a victim in the case, and is based on the assumption that the witness must have a minimum distance from the event in order to form a reasonably critical view of it. This would lessen the weight of the officer's testimony in the trial.

The argument is similar to the one that claims a judge who conducts an investigation cannot judge the case. This is because the magistrate would lose impartiality and would be unable to adequately assess the points raised by the parties. This is a common criticism of Judge Sergio Moro of the 13th Federal Court of Curitiba. Some argue that, by presiding over the investigations of Operation Lava Jato, authorizing preventive detentions and wiretaps, Moro tended to steer the sentences towards validating his previous actions.

In drug trafficking cases, it's difficult to overturn police testimony, after all, they have public faith. But the situation becomes even more complicated if the accused is black and poor, emphasizes Maíra Fernandes, former president of the Penitentiary Council of the State of Rio de Janeiro.

"These arrests are all related to where the drugs were seized. Since the law doesn't precisely distinguish between use and trafficking, the same quantity of drugs seized in Complexo do Alemão [in the North Zone of Rio] and on Rua Farme de Amoedo [in Ipanema, in the South Zone of Rio] could result in a trafficking charge in the first case and a use charge in the second. So, it has a lot to do with the zip code, the race, and the social level of the person apprehended," says the lawyer.

Other side
Not everyone sees problems with arrests and convictions for drug trafficking based solely on police witness testimony. According to criminal lawyer Bruno Rodrigues, judges don't base their decisions only on the officers' accounts, but also on the quantity of drugs seized and how they were packaged. In any case, he believes that the word of the police officers should carry the same weight as that of civilian witnesses.

The São Paulo State Prosecutor Márcio Sérgio Christino, who has led numerous investigations and trials concerning the Primeiro Comando da Capital (PCC), argues that most cases only involve police witnesses due to the difficulty of convincing someone to testify against a drug trafficker. "Does anyone think it's feasible to find a witness to testify against a drug trafficker without the State providing them with any special type of defense? Their information remains in the case file. Even if it's redacted, it will be visible to the defense attorney." He assures that there is no violation of the right to defense, as the defendant's lawyers will be able to present their version of events in the case.

* This is the second report in the series from the Consultor Jurídico website about the relationship between the war on drugs and prison overcrowding. To read the first one, click here.