"Today I had the honor of seeing data from my research cited in the judgment of REsp 2.204.950/RJ, by Minister Rogerio Schietti, in the context of eyewitness identification.
I am genuinely grateful for the reference, but above all, attentive to what it reveals: even after five years since the jurisprudential shift, there is still a profound resistance in forensic practice to comply with what the STJ has established.
The Minister’s words were firm, precise, and necessary. And they needed to be.
Improperly performed identification, without method, without respect for article 226 of the Code of Criminal Procedure, continues to be used as the sole basis for criminal convictions in several courts in the country.
This is not a technical detail.
It is about lives.
It is about the boundary between justice and judicial error.
Empirical research serves precisely this purpose: to show that the problem is real, recurrent, and systemic.
It is not about exceptions.
It is a pattern that needs to be corrected.
Convicting someone without reliable evidentiary support is not applying the law, It is violating it.
Work by @defensoriapublica and the oral argument by
@rafasgarcez.
“When Justice Becomes Injustice: the Conviction of Innocents and the Conscious Responsibility of the Brazilian State”
The recent statement by Minister Rogerio Schietti, of the STJ —
“Perhaps the moment will come when public agents will be held civilly, administratively, and criminally responsible… it is not ignorance. It is conscious, and this needs to change.” — marks a watershed in the debate on judicial errors in Brazil.
The case analyzed in REsp 2.204.950 is more than an isolated event: it is a serious symptom of a structure that violates fundamental rights, affronts international treaties, and imposes devastating suffering on innocent people and their families. This distortion is not theoretical: it has a name, a face, a story, scars, and irreversible consequences
In the recent judgment of Special Appeal No. 2,204,950, Minister Rogério Schietti, of the Superior Court of Justice (STJ), issued a stern warning to the Brazilian judicial landscape:
“Perhaps a moment will come when public agents will be held civilly, administratively, and criminally liable. Because convicting someone to prison in the face of all this normative framework, this massive jurisprudence, is at the very least a conscious irresponsibility. It is not out of ignorance. It is conscious, and this needs to change.”
The sentence summarizes a sharp criticism of the actions of judges and institutions within the system that, according to the minister, remain attached to outdated practices even in the face of established understandings by the STJ and the National Council of Justice (CNJ) — especially concerning the institute of personal identification as a means of proof.
Context
The case in question dealt with an individual who remained imprisoned based solely on identification carried out through a photograph, a procedure now considered inadequate under STJ jurisprudence. The Court’s 3rd Panel had already acknowledged the systematic violation of procedural guarantees in similar cases.
The Minister’s Warning
Clearly, Minister Schietti points out that the problem goes beyond the technical-legal field and enters the realm of institutional responsibility: by persisting in convictions without observing legal and jurisprudential parameters, public agents open the door to not only disciplinary-administrative sanctions but also civil and criminal ones.
Why This Matters
The effectiveness of fundamental rights — such as the presumption of innocence and due process of law — is weakened when procedures recognized as inadequate continue to produce imprisonments.
Public trust in the justice system is shaken when judicial errors persist even after binding guidance from the STJ.
From an institutional perspective, the statement suggests that the mere noncompliance with jurisprudence will no longer be seen as an isolated technical flaw but as conscious omission/connivance.
Conclusion
The highlighted statement serves as a call to reform entrenched practices: it is not enough for jurisprudence to evolve — legal practitioners must effectively adjust their practices. Only then will it be possible to prevent “innocent people from remaining imprisoned” while the system refuses to modernize.
✅ Complete legal analysis, structured and in-depth, as an article for publication on the blog, integrating:
Violation of broad defense and adversarial proceedings;
Violation of the 1988 Federal Constitution (with the corresponding articles);
Violation of the Code of Criminal Procedure (art. 226 and related provisions);
Violation of international human rights treaties ratified by Brazil;
Violation of LOMAN (Organic Law of the Judiciary), the Organic Law of the Public Prosecutor’s Office, and the Organic Laws of the Civil Police, which are the organs responsible for investigation and indictment;
Violation of Constitutional Amendment 45, which requires compliance with the decisions of the Superior Courts;
Analysis of the human, social, psychological, financial, and intergenerational damage caused to the innocent person and their family;
Economic impact on the State and the taxpayer;
Direct connection with the statement by Minister Rogerio Schietti (“civil, administrative, and criminal liability of public agents”).
“When Justice Becomes Injustice: the Conviction of Innocents and the Conscious Responsibility of the Brazilian State”
The recent statement by Minister Rogerio Schietti, of the STJ —
“Perhaps the moment will come when public agents will be held civilly, administratively, and criminally responsible… it is not ignorance. It is conscious, and this needs to change.” — marks a watershed in the debate on judicial errors in Brazil.
The case analyzed in REsp 2.204.950 is more than an isolated event: it is a serious symptom of a structure that violates fundamental rights, affronts international treaties, and imposes devastating suffering on innocent people and their families. This distortion is not theoretical: it has a name, a face, a story, scars, and irreversible consequences.
1. Violation of broad defense and adversarial proceedings (Federal Constitution/88, art. 5, LV)
The conviction based exclusively on irregular photographic recognition is, in itself, an attack on the core of due process of law.
Art. 5, LV, Federal Constitution/88:
“to litigants, in judicial or administrative proceedings, and to the accused in general, adversarial proceedings and full defense are ensured…”
The accused did not have a real opportunity to:
contest the recognition;
participate in the regular procedure;
demonstrate the glaring physical discrepancies;
receive effective legal assistance during the police phase.
The absence of the procedure required by art. 226 of the Code of Criminal Procedure — which requires forming a group of similar persons, presentation without suggestion, and formal documentation — eliminates any possibility of qualified adversarial engagement.
When the only “probative act” is illegal, there is no possible adversarial process.
2. Direct violation of the Code of Criminal Procedure (art. 226 and related provisions)
The STJ has established binding precedent:
Photographic recognition does NOT replace in-person recognition;
Irregular recognition does not generate valid evidence;
A decision based solely on this is null.
In the case, none of the mandatory steps were followed:
there was no group of similar persons;
there was no in-person act;
the victims’ descriptions diverged from the accused’s real features;
there was suggestion and accusatory reinforcement;
there was no formal record of the procedure.
All this represents an EXPRESS VIOLATION of the Code of Criminal Procedure and binding jurisprudence.
3. Violation of the 1988 Federal Constitution
Beyond art. 5, LV, the following provisions were violated:
Art. 1, III — Human dignity
Keeping an innocent person imprisoned for three years, destroying their social and family life, and marking them forever as a criminal constitutes the maximum level of violation of human dignity.
Art. 5, LIV — Due process of law
There can be no due process of law when the only piece of evidence is an illegitimate act.
Art. 5, LVII — Presumption of innocence
Faulty and informal recognition creates an automatic presumption of guilt, inverting the burden of proof.
Art. 5, LXXV — Compensation for judicial error
The case fully fits this provision — yet the State rarely compensates.
Art. 37 — Objective liability of the State
The damage caused by police officers, delegates, prosecutors, and judges arises from the failure of the public service.
Constitutional Amendment 45/2004 — Mandatory observance of STF and STJ decisions
Art. 103-A (binding Súmula)
Art. 105 (uniformizing competence of the STJ)
The lower courts repeatedly violate binding decisions, which constitutes:
Offense to the Brazilian system of precedents;
Violation of legal certainty;
Violation of Constitutional Amendment 45, which incorporated the mandatory observance model.
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4. Violation of international human rights treaties
Brazil violated specific provisions of the following instruments:
International Covenant on Civil and Political Rights (ICCPR)
Art. 9 — right to liberty;
Art. 14(1) — due process;
Art. 14(2) — presumption of innocence;
Art. 14(3) — right to defense and adversarial proceedings;
Art. 14(5) — right to review by a higher court.
American Convention on Human Rights (Pact of San José)
Art. 7 — right to liberty;
Art. 8 — judicial guarantees;
Art. 25 — judicial protection.
Universal Declaration of Human Rights
Art. 9 — prohibition of arbitrary arrest;
Art. 10 and 11 — fair trial, presumption of innocence.
The Inter-American Court considers irregular recognition to be extremely high-risk evidence and often inadmissible.
---
5. Violation of LOMAN – Organic Law of the Judiciary
The insistence by judges on:
admitting illegal evidence;
ignoring binding precedents;
maintaining imprisonment based on assumptions;
disregarding mass absolutions in the same case;
violates:
Art. 35, I, III and VIII of LOMAN (duty to follow the law, decide according to evidence, and respect precedents).
This constitutes functional misconduct.
6. Violation of the Organic Law of the Public Prosecutor’s Office
The Public Prosecutor’s Office:
argued for maintaining convictions with illicit evidence;
acted against consolidated jurisprudence;
reinforced accusations without factual basis;
failed in its constitutional duty as guardian of the legal order.
Violation of:
Arts. 127 and 129 of the Federal Constitution;
Law 8.625/1993 — duty to defend legality and the democratic regime;
Complementary Law 75/1993 — requirement of impartial, responsible conduct.
7. Violation of the Organic Laws of the Civil Police
The police:
conducted irregular recognition;
induced the victims;
failed to ensure adversarial process;
failed to respect CNJ protocols.
They violated functional duties of:
legality;
impartiality;
preservation of chain of custody;
respect for human rights.
8. The devastating impact on the life of the innocent person and their family
Minister Schietti described a picture of complete destruction:
a) Personal destruction
3 years wrongfully imprisoned;
Eternal stigma of “criminal”;
Depression, anxiety, forced isolation;
Loss of self-esteem and social identity.
b) Family destruction
Loss of time with his young daughter;
Breakdown of emotional bonds;
Intergenerational psychological trauma;
Permanent shame, fear, and insecurity.
c) Professional and economic destruction
Impossibility of reentering the job market;
Duplicate criminal records preventing employment;
Permanent loss of income and stability.
d) Social destruction
Community stigma;
Fear of retaliation;
Impossibility of normal life
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9. The colossal financial cost for the State and the taxpayer
Each judicial error generates:
a) Police cost
Hours of poorly conducted investigation;
Resources wasted on useless measures.
b) Public Prosecutor’s cost
Prosecutors handling baseless cases;
Appeals and opinions produced for nothing.
c) Judicial cost
Trials in 1st, 2nd instance, State Court, and STJ;
Time, personnel, structure, transport of inmates.
d) Prison cost
Maintaining an innocent person imprisoned for 3 years;
Managing internal disciplinary procedures.
e) Future cost
Compensation for judicial error;
Social reintegration;
Administrative proceedings against agents.
In the end, the people pay.
The State spends millions to convict innocents — and millions again to repair the damage.
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10. Conscious irresponsibility
The central point of Minister Schietti’s statement is profound:
it is not ignorance — it is conscious.
When:
the law is clear;
jurisprudence is consolidated;
the CNJ issues a manual;
the STJ repeats the doctrine hundreds of times…
…and even so judges, prosecutors, and police insist on repeating the error, we face civil, administrative, and criminal responsibility.
CONCLUSION: when the State errs consciously, it is not a mistake — it is a violation of human rights
This case should mark the beginning of:
the CNJ opening a national procedure;
the Public Prosecutor’s Office revising protocols;
the police reformulating practices;
lower courts complying with Constitutional Amendment 45 and binding precedents;
society demanding accountability and reparation.
Minister Schietti’s statement echoes as a warning and an admonition:
“Change is necessary. And fast.”
CONJUR OPINION
Innocents are imprisoned due to judges’ laziness, warns STJ minister
November 12, 2025, 6:57 p.m.
For Minister Rogerio Schietti, of the Superior Court of Justice, the laziness and irresponsibility of Brazilian judges, who do not apply the jurisprudence on personal identification, have led to the maintenance of unjust imprisonments and unfounded accusations.
Schietti criticized disregard for jurisprudence on personal identification.
“Innocent people are being kept in prison due to the irresponsibility of professionals who should honor the salary they receive, but who are bowing to laziness or to a lack of diligence in pursuing an understanding that has been outdated for five years.”
The outburst was made during the session of the 6th Panel of the STJ this Tuesday (11/11), in the judgment of a special appeal against a decision of the Rio de Janeiro Court of Justice that upheld the conviction of a man who was the victim of systemic injustice.
A doorman was accused of more than 70 crimes exclusively based on a photo taken from his Facebook profile and presented by the Rio police in a “suspect album.”
Personal identification
In 2023, the 3rd Section of the STJ recognized the systematic violation of the man’s procedural guarantees, since personal identification in all these cases was not carried out as required by article 226 of the Code of Criminal Procedure. Since 2020, the STJ has understood that photo identification does not replace personal identification and cannot serve as evidence. This year, this position became binding.
Under the law, the person who will identify a suspect must see similar-looking people placed side by side and point them out without a shadow of doubt.
When the STJ analyzed the suspect’s case, it ordered the Rio court to review all the proceedings in which he was accused. So far, there have been acquittals in 51 of them, rejection of two indictments, one dismissal of charges, and two successful criminal reviews.
There are still 14 entries remaining on his criminal record. One of them was overturned by the 6th Panel of the STJ on Tuesday, with the granting of the special appeal filed by the Rio Public Defender’s Office.
Reporting judge of the appeal, Schietti highlighted that this judicial error destroyed the doorman’s life: at age 32, he continues to bear the stigma of being a criminal, spent three years in prison, lost contact with his young daughter, and lives confined at home, still the target of criminal cases.
Widespread laziness
In his vote, the minister cited research data by lawyer David Metzker, which indicate that, in 2025 alone, the STJ granted relief in Habeas Corpus 234 times to apply the jurisprudence on personal identification.
Of these cases, 70 (30% of the total) come from Rio de Janeiro, which demonstrates disobedience not only to the STJ but also to the rules approved by the National Council of Justice, which created a procedures manual to avoid judicial errors caused by faulty identification.
The data also show that, in Rio cases where it is possible to identify the position of the Federal Public Prosecutor’s Office — in the capacity of guardian of the law, and not as a party —, 70% issue opinions denying relief.
With this, the 6th Panel decided to report the Rio case to the CNJ so that it takes measures to “sensitize those who insist on persevering in an understanding” that is already outdated both jurisprudentially and administratively, according to Schietti.
“Perhaps a time will come when public agents will be held civilly, administratively, and criminally liable. Because sentencing someone to prison in the face of all this normative framework, this massive jurisprudence, is at the very least a conscious irresponsibility. It is not out of ignorance. It is conscious, and this needs to change.”
REsp 2.204.950
- Danilo Vital
is the Brasília correspondent of the magazine Legal Consultant.
Tags:
acquittal
disregard
judicial error
lack of diligence
jurisprudence
laziness
personal identification
Rogerio Schietti
STJ
superior court of justice
MIGALHAS OPINION
STJ acquits defendant convicted based on irregular personal identification
MIGALHAS
“Conscious irresponsibility”
Minister Schietti warns: “Maybe the time will come when public agents will be held civilly, administratively and criminally liable.”
STJ acquits defendant convicted based on irregular personal identification
Minister Rogerio Schietti points to the persistence of convictions issued without compliance with article 226 of the Code of Criminal Procedure and criticizes:
“It is conscious irresponsibility. We are not dealing with papers, but with innocent people.”
By the Editorial Staff
Tuesday, November 11, 2025
Updated at 21:09
By unanimity, the 6th Panel of the STJ acquitted Paulo Alberto da Silva Costa, convicted of robbery based solely on a photographic identification carried out without observing the legal criteria provided in article 226 of the Code of Criminal Procedure.
The rapporteur, Minister Rogerio Schietti Cruz, stated that the case “may be the most emblematic example of the dysfunctionality of the Brazilian criminal justice system” and criticized the continued issuance of convictions grounded on invalid evidence.
> “Legal professionals, from the early investigative stage to the highest levels of judicial review, must be more than empathetic: they must be responsible. They are not dealing with papers; they are keeping innocent people in prison.”
The minister further ordered the decision to be sent to the National Justice Council (CNJ) so that it may adopt concrete measures in light of the resistance of authorities to apply the precedent from the 3rd Section in Theme 1,258, which considers identifications carried out in violation of the law to be invalid.
Understanding the case
The Rio de Janeiro Public Defender’s Office appealed to the STJ after the Rio State Court of Justice (TJ/RJ) upheld Paulo Alberto’s conviction, even after the STJ's 3rd Section, in 2023, recognized that he was the victim of “systemic procedural violence” in several proceedings based exclusively on irregular personal identifications.
The only piece of evidence supporting the accusation was a Facebook photo used in a show up identification conducted without forming a group of similar-looking individuals.
The victims had described a Black, thin man, aged 20 to 25, 1.75 m tall, whereas the defendant was 32 years old and 1.85 m tall at the time of the facts.
In court:
two victims did not recognize him,
a third pointed to him only at the hearing, with no formal written record prepared.
And yet, even with no other corroborating evidence, the state court maintained the conviction in December 2024.
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Repeated disregard for the law and precedent
In his vote, Schietti noted that on that same day, the CNJ had created the National Observatory to Prevent Judicial Errors and Wrongful Convictions, under the direction of Counselor Daniela Madeira and coordinated by Minister Edson Fachin — an initiative which he said “offers hope that things may change course.”
The minister reported the following facts:
Paulo Alberto spent three years in prison.
He was acquitted in 51 criminal cases.
He had two complaints dismissed, two criminal reviews upheld, and one non-indictment decision.
He still has 14 duplicated entries in his criminal record.
He was indicted in over 60 investigations, despite never being heard at a police station and never being found with any illicit object.
Schietti stressed the devastating impact:
> “This man’s life, after three years in prison, is over. He can no longer go outside, lost contact with his daughter, and now lives secluded, still burdened by records and proceedings arising from an unfounded accusation.”
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Conscious irresponsibility
The rapporteur highlighted that even after the judgment in HC 598,886, which established the mandatory observance of article 226 of the CPP, the STJ recorded 234 decisions in 2025 involving identification procedures — 70 of them from the State of Rio de Janeiro.
And in 70% of these cases, the Federal Prosecution Service (MPF) issued an opinion against granting relief, even where the identification was the only evidence.
For the minister, authorities’ insistence on ignoring established jurisprudence constitutes:
> “Conscious irresponsibility".
And he declared:
> “Maybe the moment will come when public agents will be held civilly, administratively, and criminally liable. Because sentencing someone to prison, to confinement, given the overall legal framework and the massive jurisprudence on the matter, is at the very least conscious irresponsibility. It is not ignorance — it is deliberate, and this must change.”
Schietti added that the CNJ, the STJ and the Supreme Federal Court have been working to correct these distortions, but that resistance persists among judges and members of the prosecution.
> “It is sad. So many years have gone by and we still have to judge the same issues, spending our time to state the obvious. Enough is enough.”
Measures ordered
Schietti suggested that the CNJ be formally notified of the decision to adopt awareness and oversight measures ensuring the proper application of jurisprudence.
The 6th Panel unanimously followed the rapporteur, granting the special appeal to acquit Paulo Alberto da Silva Costa, and reaffirming the understanding of Theme 1,258, according to which identification procedures conducted in violation of article 226 of the CPP are invalid and cannot support a conviction.
Case Number: REsp 2,204,950
