Uma factual perspectiva do processo penal: a atuação humana e sua subjetividade à luz da teoria dos jogos

Abstract

The Criminal Process is understood as a game, where there are players and even judges, is increasingly in evidence, when observed the factors for this understanding. In this way, the presence of the Game Theory in the application of Criminal Law and Criminal Procedure is clear, causing the process to become a battlefield where the parties (players) seek justice clad victory. The criminal procedural game must be analyzed dynamically, with incomplete and imperfect information, which makes decisive not only the technique and domain of positive law, but also, peculiar abilities to the criminal procedural game of the prosecution and defense players. However, fostering success in the process raises concerns about the rules of the game and its procedural dopings, and can achieve fair play. The power of the human mind in the (un) conscious of the players and the judge is raised for a partial inquisition of the criminal case, as well as simpler, quicker and easier ways (System 1) to think and solve questions in the game, explained by psychoanalysis, not be ideal. Thus, the criminal procedural game may entail a possibility to relativize some principles, such as impartiality and neutrality in criminal law, due to human natural influences (or not) and to bring to the baila the real sense of truth, under its factual perspective.