Derivative illegally obtained evidence and the inevitable discovery exception: an analysis based on the doctrine and case law of the Superior Court of Justice

The purpose of this article is to analyze the factual and legal arguments that underpin the decisions of the Superior Court regarding the inevitability of the discovery of illegal evidence through derivation. To this end, it begins with a theoretical study on illegal evidence and the exclusionary rule. Next, it examines the illegality by derivation and, subsequently, the exception to illegal evidence by derivation, which is based on the theory of inevitable discovery. This theory is addressed from a critical and historical perspective, tracing its origins in U.S. case law to its incorporation into Brazilian law through the amendments introduced by Law No. 11.690/2008, highlighting the issues involved in its adoption. Finally, an empirical analysis is conducted, based on decisions of the Superior Court of Justice, using the database available on the official Court jurisprudence website and following previously defined methodological criteria.

Keywords
Illegal evidence; illegality by derivation; theory of inevitable discovery; Superior Court of Justice