The 1988 Constitution and the concept of good record for appealing at liberty

Abstract

Criminal judicial practice is strongly influenced by the social conditions under which proceedings unfold, so that, in the name of greater punitive rigor, valuable procedural guarantees are often disregarded, as seen in the enactment of Precedent 9 of the Superior Court of Justice, which kept in force the rule of article 594 of the Code of Criminal Procedure. The extremely fluid concept of good record is analyzed, examining whether conduct contemporaneous with or subsequent to the crime, dismissed investigations and pending criminal proceedings may taint the record, and whether such record expires over time. It is found, supported by doctrine and by Supreme Court and Superior Court of Justice case law, that only a final unappealable conviction can justify the recognition of a bad record. It is concluded that the notion of good record must be set aside as a criterion for appealing at liberty, and that, in light of the presumption of innocence, only precautionary requirements should prevail.