Evidence law: From judicial sovereignty to respectful control by Supreme Court

Abstract

The Supreme Court must control the correct application of Evidence Law, incluiding when discusion is about judicial assessment of evidence. This paper show that reluctance on the part of the Supreme Court to exercise that control comes of the traditional conception of cassation, wich has fostered the thesis of judicial sovereignty (in their strong and weak versions). This suspitions decrease —through formal cassation— due to the control of defective motivations, but the normative sense of Evidence Law suggest not limit control to this only situation; this is what the veredicts indicate, for example, in paternity suits and actions in rem. Anyway, this control must be respectful with judge since the institutional design of the judicial process includes others measures to correct judicial errors, avoiding at the same time the risks of formalistic and excessive control.