O raciocínio probatório entre a prova livre e a prova legal: um modelo de normatização do juízo de fato por standards, regras de segunda ordem, critérios e diretrizes

Is fact-finding susceptible to normative regulation within a procedural system aligned with the rationalist tradition of evidence? Guided by this question, this article examines the possibility of adopting an intermediate system between a free proof system and a legal proof system. In view of the ideal of affording greater legal certainty to fact-finding without constraining judicial reasoning in light of each case, the formulation of norms on fact-finding is presented as a strategic decision (a second-order decision, following Sunstein and Ullmann-Margalit), whose effects must be weighed in light of the aims pursued. A systematization of the normative propositions applicable to fact-finding into four types is then proposed (standards of proof, second-order proof rules, evidence evaluation criteria, and evidence evaluation guidelines), which operate in different evidentiary contexts and perform distinct functions. Finally, examples and a summary chart of the four types are presented. It is hoped that the proposed systematization will contribute to the rationality and legal certainty of fact-finding without resulting in a system of fixed evidentiary weights.