Defensive investigations are the instrument through which the defence takes part in the formation of the evidentiary material, on a footing of substantial equality with the public prosecutor. Introduced in complete form by Law no. 397 of 7 December 2000 and placed in Title VI-bis of Book V of the Code of Criminal Procedure (Articles 391-bis to 391-decies), they find their systematic foundation in Article 327-bis of the Code, which grants defence counsel — from the moment of the engagement — the power to carry out investigations to search for and identify evidence in favour of the client.
Their real impact on the proceedings depends on the technical rigour with which they are conducted. An investigative act vitiated by failure to observe the formal requirements is inadmissible and, in certain cases, exposes counsel to criminal liability (Articles 371-ter and 381 of the Criminal Code) and disciplinary liability.
The principal of the firm devoted his academic career to the statute of defensive investigations: the doctoral thesis defended in 2015 at the Alma Mater Studiorum of Bologna — PhD programme in "Institutions and Markets, Rights and Protections" (26th cycle, scientific field IUS/16), supervisor Prof. Giulio Illuminati; tutor Prof. Michele Caianiello — reconstructs their procedural regime in a comparative perspective with the United States system, analysing the American Bar Association's Criminal Justice Standards — Defense Function and the Supreme Court case law on the right to counsel (from Gideon v. Wainwright to Strickland v. Washington and United States v. Cronic).
Definition and rationale
A defensive investigation is the activity, carried out by defence counsel or by the persons authorised to do so, aimed at searching for and identifying evidence in favour of the client. Its introduction gave effect to the principle of equality of arms enshrined in Article 111, paragraph 2, of the Constitution and placed the defence in a position to contribute to the formation of the material usable in the proceedings, without having to depend exclusively on the initiatives of the public prosecutor.
The rationale is not merely one of safeguards. A defence that confines itself to waiting for the public prosecutor's file adopts a reactive posture, structurally disadvantaged. The defensive investigation makes it possible, in parallel, to build an alternative reconstruction of the facts, to identify favourable witnesses, to document circumstances incompatible with the prosecution's hypothesis and — at times — to forestall the very bringing of charges.
Who may conduct them
The investigative activity may be carried out personally by the appointed defence counsel, by his substitute, by any co-counsel, by an appointed technical consultant and by a licensed private investigator under Article 222 of the implementing provisions of the Code of Criminal Procedure and Ministerial Decree 269/2010. The auxiliaries operate under the direction and responsibility of counsel; outside that perimeter, the material gathered loses its procedural status and becomes inadmissible in the proceedings.
When they are activated
Defensive investigations may be carried out at any stage and instance of the proceedings: during the preliminary investigations (once counsel has had formal notice of the proceedings), at the preliminary hearing, at trial at first and second instance, in precautionary proceedings, in enforcement proceedings and in asset-prevention proceedings. Article 391-nonies of the Code of Criminal Procedure also allows preventive defensive investigations, that is, prior to the start of the proceedings, "in the event that criminal proceedings should be instituted": an institution particularly useful, in the business context, for internal criminal-audit work, due diligence on 231 organisational models and the management of reputational crises with potential judicial implications.
The typical acts
The Code defines a range of activities, each with its own formal regime.
Undocumented interview (Article 391-bis, paragraph 1, of the Code of Criminal Procedure). Counsel confers informally with the person with knowledge of the facts. The act does not enter the file and is not usable as evidence, but it allows an assessment of the relevance of the contribution and of whether to move to documented forms.
Written statement of the informed person (Article 391-ter of the Code of Criminal Procedure). The statements made are recorded in a document signed by the declarant, with the signature authenticated by counsel, accompanied by the report attesting to the conditions of its taking. They must be preceded by the statutory warnings.
Documented interview (Article 391-bis, paragraphs 2 and 3, of the Code of Criminal Procedure). The statements are recorded in minutes by counsel. Here too the warnings required by law are due: counsel's capacity, the purpose of the interview, the duty to answer truthfully, the right not to answer or not to make the statement, and the prohibition on disclosing the questions put by the judicial police or by the public prosecutor and the answers given.
Examination before the public prosecutor (Article 391-bis, paragraph 10, of the Code of Criminal Procedure). If the informed person exercises the right not to answer or not to make the statement, counsel may request that the examination be ordered by the public prosecutor, who proceeds within seven days of the request.
Access to places (Articles 391-sexies and 391-septies of the Code of Criminal Procedure). Counsel may enter public places, places open to the public or private places in order to view the state of the places and things, describe them or carry out technical, graphic, planimetric, photographic or audiovisual surveys. Access to private places or places not open to the public requires the consent of the person who has control of them or, failing that, the authorisation of the judge; places of private dwelling and their appurtenances are in any event excluded, unless it is necessary to ascertain the traces or other material effects of the offence.
Technical surveys and findings (Article 391-decies of the Code of Criminal Procedure). Where the act is by its nature unrepeatable, counsel notifies the public prosecutor so that he may attend its performance, and the act enters the trial file.
Obtaining documents. Article 391-quater of the Code of Criminal Procedure allows counsel to request from public authorities the documents in their possession, including copies; in the event of refusal, an application may be made to the public prosecutor for their seizure. A similar request may be addressed to private parties, who remain free to decline.
Limits and responsibilities
The subject carries a significant area of risk. As to admissibility, failure to give the warnings, the absence of documentation, and the breach of the subjective or objective limits on the taking of evidence render the act inadmissible. On the criminal side, Article 371-ter of the Criminal Code punishes those who make false statements to counsel conducting investigations; Article 381 of the Criminal Code, reciprocally, punishes counsel who produces or uses documents he knows to be false. On the disciplinary side, Article 55 of the Code of Conduct for Italian Lawyers lays down the specific rules of conduct in defensive investigations.
A technically careful defence integrates from the outset the planning of the investigation with the verification of the lawfulness of each act, because a favourable piece of evidence that is inadmissible weighs, in the proceedings, as much as its absence.
When the defensive investigation is decisive
The defensive investigation is not an ornamental procedure. It is decisive, in particular, in four scenarios that recur in business criminal proceedings.
Alternative reconstruction of the facts. Where the prosecution's hypothesis rests on a one-sided reading of accounting records, financial flows or digital traces, a parallel documentary reconstruction, conducted with a technical consultant, can show the lawfulness of the transactions or the entirely physiological nature of the anomalies alleged.
Identification of favourable witnesses. The persons with knowledge of the facts — colleagues, employees, suppliers, customers, professionals involved — may be heard by the defence even before the public prosecutor. The timely collection of their statements crystallises memories destined to fade and prevents later influence on the content of their testimony.
Dismantling the prosecution theory. A prosecution theory rests on the internal coherence of a set of circumstantial elements. The identification of a single incompatible element — a document unknown to the public prosecutor, an irreconcilable temporal circumstance, a documented business practice — can force the repositioning of the entire hypothesis.
Prevention. In the business context, the preventive defensive investigation (Article 391-nonies of the Code of Criminal Procedure) makes it possible to document, before any proceedings arise, the effectiveness of controls, the genuineness of management choices and the compliance of processes with the 231 organisational model. It is a tool of evidentiary insurance at contained cost, with significant strategic value.
The firm's method
The firm applies to defensive investigations a method that combines two complementary experiences, rarely found together.
The first is the investigative practice gained by the principal as a judicial police officer during his service in the Carabinieri (1986-2015), with consistently positive professional assessments. Someone who has conducted investigations for the prosecution for years knows the logical sequences by which a file is built: which document is sought first, which person is heard in order to steer the subsequent inquiries, which expert report is commissioned to fix the reconstructive framework. This knowledge, applied in a defensive role, makes it possible to anticipate the public prosecutor's moves and to prepare, in parallel, material capable of contesting them.
The second is the dedicated academic training. The PhD, obtained in 2015 at the Alma Mater Studiorum of Bologna, was built around the critical reconstruction of the statute of defensive investigations, in a comparative perspective with the United States model. The thesis analysed the procedural regime article by article, identified six critical points (the power to summon, video recording of the documented interview, broadening of the mandatory warnings, production of documents by private parties, the possibility of challenging secrecy orders, equalisation of the powers of access to places) and proposed as many reform measures de iure condendo.
The combination of the two experiences translates into a precise procedural posture: reading the public prosecutor's file with the dual perspective of someone who knows what the prosecution is looking for and who knows the folds of the rules the defence may legitimately deploy.
Every engagement is preceded by written planning of the investigative activity: definition of the evidentiary objectives, mapping of the persons to be heard, identification of the documents to be obtained, a schedule of the technical inquiries, and a preliminary assessment of their repeatability. The acts are performed personally by the principal; auxiliaries intervene in cases requiring dedicated technical expertise or, under the rules in force, the contribution of a licensed private investigator.
Related areas
- Business criminal law — main area
- Profile and training of the principal
- Education and academic research — doctoral thesis and contributions on the subject
For a first discussion
Starting a defensive investigation — preventive or in the course of proceedings — requires a first meeting to define the scope of the engagement, the evidentiary objectives that can realistically be pursued and any need for technical consultants. An appointment can be arranged by contacting the firm at Corso della Repubblica 19, Forlì, using the details in the Contact section.