Out-of-Court Taking of Oral Evidence
Name: DANIEL AMORIM PINHO
Publication date: 24/06/2026
Examining board:
Name |
Role |
|---|---|
| AMÉRICO BEDÊ FREIRE JÚNIOR | Examinador Externo |
| FRANCISCO VIEIRA LIMA NETO | Presidente |
| VALESCA RAIZER BORGES MOSCHEN | Examinador Interno |
Summary: This dissertation examines the possibility of the extrajudicial and consensual production of
oral evidence — witness testimony and the personal examination of the parties — in Brazilian
civil procedure, taken in advance by the parties, represented by their attorneys, through a
procedural legal transaction and without judicial intervention in its collection. The central
problem asks whether all oral evidence must be produced before the court, under the judge’s
direction, in order to be valid and effective. The aim is to demonstrate, on distinct levels, the
legal admissibility and the practical usefulness of this technique. The study adopts a dogmatic
method, of doctrinal and legislative basis, centered on the Code of Civil Procedure and in
dialogue with case law and with the experience of the United States deposition, taken as
functional inspiration rather than as a model to be transplanted. It is argued that the atypicality
of the means of evidence (art. 369), the general clause of procedural negotiation (arts. 190 and
200), the early production of evidence regardless of urgency (art. 381), and the reasoned and
reviewable assessment of evidence (art. 371) authorize extrajudicial collection, configuring
the case of typical evidence obtained through an atypical means. It is concluded that the
procedural legal transaction is a suitable instrument to legitimize such production, provided
that the substantive right to be heard, the right to a full defense, the integrity of the
audiovisual record, and subsequent judicial control of validity, admissibility, and assessment
are preserved, without aggravating vulnerabilities. The probative effectiveness is gradable
according to the quality of the procedure. The thesis does not depend on legislative reform,
although Bill No. 5,045/2025 confirms this trend. There is no privatization of justice, but a
partial dejudicialization of collection, with the final word retained by the court.
