The literature on the court dock: Did Bentinho kill Capitu?

Publicado em 19 Apr. 2016. Última atualização em 19 Apr. 2016
Descrição da atividade

Summary: 

The activity involved the conduction of a simulated jury, played by students, whose fictional situation was inspired by the work named "Don Casmurro" by Machado de Assis. The intention was to provide a judgment experience, as close as possible of the forensics reality, raising questions that touch other areas of knowledge such as literature and history.

Objective: 

- GENERAL GOALS: The Procedural Law IV class ends the four semester cycle of required class related to the Brazilian penal procedures. At this stage of the course, students are sufficiently mature on the absorption of the concepts of Penal Law and Penal Procedure. So, it is the right time to establish stronger bridges between theory and practice. The contents worked in the activity were:

1. Law: Jury Court procedure in its second phase; Acts of preparation of the judgement; Process transfer; Intimacy and validity of criminal evidence; Expert evidence and its limitations; Distinction between homicide and suicide; questions; presumption of innocence and probative onus;

2. Literature: analysis of the work "Don Casmurro", understanding the psychological profile of the central characters and of the existential dilemma that permeates the disturbing state of Bentinho;

3. History: analysis of the social context in which the plot is inserted, especially the morals habits that dictated Rio society on the late XIX century; the role of women in that context and the social weight that any marital betrayal could represent for a character who is a legitimate representative of the urban bourgeoisie;

4. Justice and media: analysis of the effects caused by the media exploration in the conviction of the jurors.

- SPECIFIC GOALS: The activity was informed by four pedagogical pillars:

a) Completion of the learning process, with better fixation of the concepts related to the Brazilian jury procedure and of the intentional crimes against life.

b) Establishing dialogues between law and other knowledge areas such as literature, history and psychology;

c) Protagonism of students in the development of fictional script and execution of all the didactic activity;

d) Possibility of understanding the evolution of the historical process of the jury institution in the Brazilian legal system.

In the proposed case, the activity led to the confrontation of three aspects from the whole course of penal procedural law:

1. Deepening understanding of the procedural acts, which make up the jury court procedure in its second phase by the student direct involvement in the formatting, preparation and execution of a simulated judgment session;

2. Confronting and solving some procedural and materials questions, such as: a) limits and reach of the displacement incident of the jury court plenary session; b) execution of all procedural acts of preparation of the plenary session, especially the formalities surrounding the elaboration of the General List of the jurors and the subsequent drawings; d) discussion about the validity of criminal evidence, represented by the apprehension of Bentinho’s personal diary and the dilemmas surrounding the preservation of person intimacy and penal prosecution; e) discussion of the potential lethal poison amount detected in the body of the victim.

3. Influence analysis in the penal process and especially in the formation of the conviction of the jurors of extra-legal questions, such as: the role of the media in the coverage of the process and the social and moral context that the case falls, especially the social status of women.

- DEVELOPED ABILITIES:

1. Exploration of the procedural-legal knowledge related to the evidences and the Jury Court procedure graduated in the classroom upon the experience of simulation;

2. Exploration of the logical and argumentative speech. Application of legal reasoning;

3. Literary knowledge of Machado de Assis' work "Don Casmurro". Also, historical knowledge of the social context in which it is inserted in the work;

4. Creativity and freedom in the elaboration of the fictional plot that served as the backdrop for the case to be judged;

5. Stimulus to the critical analysis about the jury court procedure and especially on the relationship between the prosecution and defense and between the defender and the accused;

6. Stimulus to the critical and comparative analysis of the social contexts from the late XIX Century and current;

7. Comprehension of the limits and of the reach of the innocence presumption principle, especially from students/jurors who were oriented to follow that parameter in the formation of personal conviction. 

Dynamics: 

- TEACHING METHOD: simulation, via the performance of a simulated jury

- PREPARATION: In relation to the students directly involved in the activity of the simulated jury, it was suggested, as a preparatory complementary bibliography:

a) Ardaillon, Danielle. Quando a vítima é mulher. Brasília: Conselho Nacional dos Direitos da Mulher, 1987.

b) Badaró, Gustavo. Processo penal. Rio de Janeiro: Elsevier; 2013.

c) Fernandes, Antonio Scarance. Processo penal constitucional. São Paulo: Revista dos Tribunais, 2010.

d) Lopes Jr., Aury. Direito processual penal. São Paulo: Saraiva, 2013.

e) Vieira, Ana Lúcia Menezes. Processo penal e mídia. São Paulo: Revista dos Tribunais, 2003.

In relation to the professor, the preparation began two months before the semester with the rereading of the book "Don Casmurro", made by the coordinator professor,. From this rereading, it was developed a general program of activities. During the same period, there were kept talks with the contributors’ professors in order to evaluate the possible hypotheses of the fictional script.

- DEVELOPMENT OF THE DYNAMICS: the dynamic was developed in 8 steps:

1st step: presentation of the project, the indication of the evaluation parameters, registration and draw for interested students.

At the inaugural class of the second semester of 2014, it was presented to the students the proposal to make a complementary activity, replacing the 1st semester evaluation, consisting in the realization of the simulated jury and whose case was based on the fictional script, that would be developed for them, and was inspired by the classic "Don Casmurro", by Machado de Assis.

On that occasion, the general guidelines were indicated: a) formation of a group of students who would be in charge of preparing the script and also for the realization of all other procedural process acts, thus playing the role of justice clerks; b) draw of two students who would assume the role of the prosecution and two others who would assume the role of defense; c) draw two other students who would play the role of witnesses; d) formation a "General List of the Jurors" composed by students interested in performing the function of the Board of Judgment members.

The student division planning was done as per the following:

5 students – They were responsible for the Working Group that prepared the fictional script and then took the condition of clerks of Justice, preparing the plenary session and participating in its the performance of official acts, including the secret room.

2 students – They played the role of the Prosecutors

2 students – They played the role of the defense lawyers

1 student – He played the role of Bentinho (defendant)

1 student – He played the role of José Dias (witness and book character)

1 student – He played the role of the police agent (fictional character created for the activity)

25 students – They came to the plenary session, when seven were drawn to the composition of the Board of Judgment. The others remained following the session.

TOTAL: 37 students

 

2nd step: the proposal presentation to the São Paulo Court of Justice and to obtain support for the project.

The project was presented to the president of the São Paulo Court of Justice, who expressed support.

Your Honor Law Judge, Dr. Marcus Manhães Bastos, who has an extensive experience in the Jury Court in the District of São Paulo, was invited to chair the simulated session and also to guide in advance the students about the conduction of the work session by visiting prior to the III Jury Court of the District of São Paulo.

 

3th step: the development of "expert reports" together with collaborative Professors

After meetings with Professors Henry Caivano, Professor of Law Medicine at the USP Law School, and Professor Sandra Regina Chaves Nunes, Literature professor at FAAP, it was established the elaboration of two expert reports that would instruct the process files.

Prof. Henrique was responsible for the presentation of the autopsy reports that attest that the conditions under which Capitu’s body would have been found, indicating also the "cause of death". It was decided that death would have happened due to arsenic poisoning, a common substance at the time of the facts.

Professor Sandra was responsible for the elaboration of a psychological profile report of the central characters (Bentinho and Capitu). In addition, there were meetings with the activity’s responsible professor to determine the main points that would be highlighted from each character and that could be explored with relative freedom by the students.

It was also agreed that both professors would provide clarifications on the Jury Court session, on the conditions of experts. The content of the reports would only be known during the session itself.

 

4th stage: preparation by the students of the script and preparation of the main procedural parts. Duration of 30 days

Assuming the "literary freedom", the students randomly selected to compose the working group drew up a fictitious script involving the death of the Capitu character, appearing as a suspect, Bentinho, looking for the following guidelines.

a) Delimitation of a dubious area between the passionate homicide and suicide, considering the conclusion of the autopsy report that was prepared;

b) Analysis and exploration of the moral context of the carioca society in the second army headquarters of the XIX Century, especially the social status of women;

c) Analysis and exploration of the psychological profile of the characters;

d) Analysis and exploration of the case by the mass media existing at the time of the events;

e) Taking as its premise the fact that "Don Casmurro" was actually a diary written by the own character Bentinho, who had been seized by the police during the investigation of Capitu’s death. The aspects should be raised and contain the safeguarding of privacy and that could be exploited during the judgement;

f) Facing the following procedural question: the facts took place in Rio de Janeiro. How could he be judged in São Paulo?

g) Elaboration of the main procedural parts: pronunciation decision, Bentinho interrogation term; Witness testimony term/character of José Dias; testimony term of the police officer who found the Capitu’s body and elaborated a report that would be read by the President Judge during the judgement session;

h) During the preparation of the procedural documents, especially Bentinho’s term of interrogation and testimony of José Dias, the students were oriented to remain faithful to the characteristics and psychological traits of the characters;

i) A periodical preparation that promoted, for the entire University, major bids and investigation of the process. In order to do that, they should make historical research that raised the newspapers printed in the late XIX Century, taking special caution with the layout and form of exposure of the news.

j) Use of social media to publicize the simulated jury.

During this fourth phase, students were accompanied by the advisor professor in person and virtual meetings. In parallel, during regular classes, the students were introduced to the theoretical aspects related to the second phase of jury procedure.

 

5th stage: Presentation, to the other students participating, of the script and the main parts.

In a face meeting, the material produced by the working group was officially presented to the students responsible for the prosecution, to the defense, to the student playing Bentinho (defendant) and to the two witnesses. It was asked to everyone to keep the details of the script in secret to preserve the "impartiality" of the jurors.

The students responsible for the defense were oriented to keep constant contacts with the "defendant" during the preparation of the defense, thus, assuming the role of true defenders. The judgment date was scheduled for October 10th.

 

6th step: Preparation of the judgment session with the realization of the relevant procedural acts.

The working group, which had been responsible for the preparation of the script and for the main terms of the process, began to prepare the session of the jury court, noting, therefore, the provisions of articles 422/426 and 432/435 from the Code of Criminal Procedure. Thus, based on the "General List of Jurors", it was held the draw of the 25 jurors, ten days before the judgment, where all were formally intimated. Also, there were made the intimation of the parties and witnesses enrolled.

At this stage, the Working Group was called to be at the court of the IV jury of the Capital District, in order to monitor the work of a plenary session. At that time, they were guided by Dr. Marcus, who later chaired the session of the simulated jury.

Even at this stage, the Working Group has produced two season newspapers with news concerning the conduct of the investigation and of the process. The newspapers were distributed to the university students.

In order to encourage the interest of other students who did not take a direct part of the simulated jury in the studying of the Jury Court, it was determined the obligated reading of the following books/texts:

a) FAUSTO, Boris. O crime do restaurante chinês. São Paulo: Companhia das Letras, 2009.

b) FRANCO, Ary. O juri no Estado novo. São Paulo: Saraiva, 1939.

c) Projeto do Código de Processo Penal. O procedimento do júri.

The intention was to provoke on the other students, a critical analysis of the development of the Jury Court procedures in the recent history of the Brazilian penal procedure. The book by Boris Fausto is an emblematic case occurred in the city of São Paulo in the 40’s. Reading the book of Ary Franco serves as a theoretical framework for understanding the procedural law in the temporal context in which it developed the case discoursed by Boris Fausto. Finally, the project examination of the new Penal Process Code would indicate the changing trends of the Jury Court. The reading of the three texts, in addition to the study of current legislation, allowed the students to have an evolutionary historical view of the Jury Court in the Brazilian law. This view was completed with the accompaniment of the simulated jury played by other students.

 

7th stage: orientation of students in charge of playing the role of Bentinho (defendant), José Dias (witness) and the police agent (witness).

These students received guidance from the responsible professor for the activity as well as to the performance of the plenary session of the jury.

 

8th step: conducting the judgement - Duration: Six and a half hours.

It took place on October 10th, at the Grand Hall of the Law School of the São Paulo University. There was press coverage of the Justice Court of the São Paulo State; the public was estimated at around 250 people.

All these acts of a plenary session of the jury were performed:

a) draw of the jurors and composition of the Judgment Council

b) Oath taking

c) Reading of the report prepared by the students

d) Explanations given by experts (Collaborative Professors)

e) Taking the witness statements

f) Interrogation of the defendant

g) Debates

h) Reply and Rejoinder

i) Reading questions

j) Voting in the secret room

l) Reading of the sentence in the plenary

 

POSITIVE/NEGATIVE SURPRISES

 1. The result exceeded all the best expectations. The involvement and commitment of the students were the highest possible. There was also substantial interest of the students who were not drawn;

2. The experience went beyond the narrow scope of students’ class in which it was projected. The students were able to stimulate the interest of students from the students of the University;

3. The successful experience will be replicated, with the adoption of new literary work.

 

- ATTENTION IN THE CLASSROM:

1. Early project preparation, with identification of the inspiring work;

2. Early identification of supporting works in other areas of knowledge that could serve as support for the development of the work by the students;

3. Realization of continuous monitoring and preparation meetings with students and other collaborative professors. All students involved in the activity of the simulated jury had to follow a real judgment session to observe, carefully, the performance of the role and the function performed by each procedural actor;

4. Continuous monitoring of the development of each stage of the process;

5. Achievement of support from the São Paulo Justice Court to publicize the event and magistrate indication that could preside over the simulated session;

6. Final meeting, after the plenary session to evaluate the student’s reaction and critical appreciation of the experience.

Evaluation: 

- GRADE EVALUATION: 1. The students who have played a part of the simulated jury, had their participation replaced the first semester evaluation.

 

1.1 The work group that was responsible for preparing the script and the fulfillment of the procedural acts preparatory and of the judgment session. These were their evaluation criteria:

a) Creativity capacity, preserving the degree of connection between the fictional script and the work of Machado de Assis;

b) Capacity of the proposed scenario in making discussions of penal law and penal procedure;

c) Capacity of the proposed script in creating debates on the social and moral context of the carioca society in the end of the XIX century;

d) Creative capacity in the development of the main parts of the judicial process;

e) Creativity capacity and historical accuracy in the preparation of the periodic that would tell the facts related to the investigation of Bentinho’s judgment process;

f) Performance evaluation in the conduct of preparatory procedural acts of judgment and conduction of the acts during the plenary session.

 

1.2 The students who took on the role of the Prosecution and Defense. These were their evaluation criteria:

a) Handling of the legal concepts taught in the classroom;

b) Capacity of analysis to participate in the examination of witnesses in a plenary session;

b) Analysis of creative ability in the defense of the legal theses;

c) Analysis of argumentative discourse and its logical coherence;

d) Performance analysis on the assumed role and evaluation of their loyalty to the actions of the prosecution and of the defense in a Jury Court plenary session.

 

1.3 Students who took on the role of the witnesses

a) Analysis of creative ability in the performance of proposed papers and preparation of other details not fixed in terms of their respective testimonies;

b) Loyalty degree analysis of the character building process, taking as a parameter the literary work that serves as inspiration for the activity.

 

1.4 Students who took the defendant paper (Bentinho)

a) Critical capacity analysis on the performance of the proposed paper and the development of other details not fixed in his interrogation term;

b) Analysis of the level of fidelity of the building character process related to the profile planned by Machado de Assis.

 

1.5 The students who played the function of jurors – The participation did not relieve them from the first semester evaluation. However, they received some bonus points for their participation

 

2. The students who did not take part in the simulated jury session

They performed the first semester evaluation, where they were questioned about the current Jury Court procedure in the Code of Criminal Procedure, and they were also asked about comparative questions between the procedure during the New State and the proposed changes of the new Code of Criminal Procedure. Additionally, they were also asked about specific points of the work "O crime do restaurante Chinês" written by Boris Fausto, especially about the relations between media and Justice that are explored by that work.

Activity Details

Name: 

The literature on the court dock: Did Bentinho kill Capitu?

Institution: 

Universidade de São Paulo

Concentration area: 

  • Penal Law
  • Penal Process
  • Forensics

Discipline : 

Penal Process IV - 8th semestre

Course: 

  • Undergraduate

Key words: 

  • Simulated Jury
  • Literature Dom Casmurro
  • History
  • XIX Century

Number of students: 

from 20 to 40

Time of application: 

6 hours

Edition: 

Guilherme Forma Klafke

Copyright

Licença Creative Commons
This work is licensed under a Creative Commons Atribuição-NãoComercial-CompartilhaIgual 4.0 Internacional

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