Defence investigations in Italy: the powers nobody uses

Who needs to use the defence's own investigative powers

Defence investigations are not only for the well-resourced. They are for anybody whose case depends on a fact that will not wait for the authorities to look for it.

Some are people who have just been told they are under investigation. They know the other side of the story, because they were there, and they know that a witness is about to move away, that a recording will be overwritten, or that a document sits with a bank that holds it for a limited time. They want to know what they can do now, without waiting for a formal accusation.

Others are people already charged, whose lawyer has read the file and finds that something is missing: an alibi that was never checked, a witness who was never asked, a place that was never visited. The prosecution built its case from what it found; the defence can look for what it did not.

A further group are injured parties and complainants, who also benefit from investigations to prepare a claim, and relatives of people held in custody who need facts to support an application. Companies facing an inquiry use the same powers to collect their own records and to speak to staff in a controlled way.

Finally, there are foreign clients whose evidence lies in another country: a bank statement, a message history, a person who can confirm where they were. They need to know how material gathered abroad can be turned into something an Italian court will accept.

Decisions that shape what the defence can gather

Choices tend to determine how much a defence investigation achieves, and each has a cost.

Whether to start before the proceedings begin. The powers can be used even when no case has been opened, and early action secures evidence that will otherwise disappear. But work done early also reveals your concerns, and what is gathered may later have to be disclosed. Starting early suits cases where a witness or a recording is at risk; waiting suits cases where the shape of the accusation is still unknown.

Whether to put results into the file. Material gathered by the defence does not have to be used. A lawyer can keep it back and use it only when helpful. Placing it in the file makes it part of the case and available to the other side. The decision depends on how strong it is and what it shows about the other evidence.

Whom to engage as an expert. A technical adviser can examine a phone, a vehicle, a document or a scene, and can be decisive. Experts cost money, and their reports are only as useful as the question they were asked. Choosing the expert, and framing the question, is work for the lawyer with the client, and the cost should be agreed in advance.

What the defence can do, and in what form

The powers are formal. Interviews, requests and inspections are recorded in set ways, and a mistake in form can make good material unusable. The following are the main tools.

• Interviewing a person who knows the facts, either informally, or by taking a written statement that the lawyer certifies, or by asking the prosecutor to examine the person.
• Asking public bodies for documents and certificates that relate to the case, such as records, plans, reports and permits.
• Visiting places to inspect them, photograph them and describe them, with a record that can be used later.
• Commissioning an expert to examine an object, a device, a document or a scene and to write a report.
• Collecting private material: messages, recordings, photographs, accounts and business records, with proof of where they came from.
• Preserving evidence that is at risk of disappearing, for example footage overwritten by a system or a message set to delete.
• Keeping a defence file in which results are filed and dated, so that nothing is lost.
• Asking the court to authorise steps that the defence cannot take alone.

Each of these tools has rules about who can use it and how. The lawyer, or a person authorised by the lawyer, must carry out the formal steps.

What disappears if nobody acts, and what a delay costs

The practical argument for early action is that evidence is perishable. Camera systems record over their own footage. Phone companies and platforms keep data for limited periods. Witnesses change address, forget details or become unwilling to speak. A shop closes, a flat is relet, a vehicle is repaired, a building is renovated, and the scene is gone.

The cost of delay falls on the client in several ways. A fact that could have been shown becomes a claim that cannot be proved. A witness who would have helped becomes a stranger. And a theory of defence that depended on a document must be abandoned, or built on weaker evidence, because the document is out of reach. Because the other side can usually rely on what the authorities collected, the imbalance grows with time.

There is a human cost as well. A person under investigation spends months in uncertainty while the file grows in the direction of the prosecution. Taking active steps restores a sense of agency, though not at the price of bad decisions: acting too quickly or alone can damage a defence. A lawyer can set priorities, deciding which items are urgent, which can wait, and which are not worth pursuing. Costs matter too, as experts, travel and translations are billed separately from the fee, and the plan should reflect what the client can afford. Where legal aid applies, the position on costs must be confirmed before work begins.

Questions for the lawyer about defence investigations

Clients often ask whether the defence can do its own investigation at all. The questions below go further.

• What do I know that the authorities do not, and which parts of that can be proved?
• Which pieces of evidence are most likely to disappear, and by when must they be secured?
• Who needs to be interviewed, and in which of the permitted forms?
• Which public records can be requested, from which offices, and how long do they take?
• Do I need an expert, what would the expert be asked, and what will it cost?
• Will the results be added to the file, or kept back, and who decides?
• What can I do myself, and what must be done only by the lawyer or an authorised person?
• If evidence is abroad, how is it collected so that an Italian court will accept it?

A lawyer who has read the file can answer each of these with a plan, and a lawyer who has not will answer in general terms. Ask also how the lawyer will record each step, because the form in which evidence is gathered decides whether it can be used, and ask to see a sample page of the defence file so that you understand how your own contribution will be logged and dated.

What to leave to the lawyer, and what to avoid

Well-meaning clients can spoil their own evidence. The following actions should wait for the lawyer.

• Do not approach witnesses to ask what they remember or to tell them what you remember. A conversation of this kind can be portrayed as influence.
• Do not record conversations in secret and treat the recording as evidence without advice. Admissibility depends on the circumstances.
• Do not enter premises or look at devices that belong to other people. Gathering evidence unlawfully can lead to a new offence and make the material unusable.
• Do not edit, crop or rename files. Keep originals as they are, with their metadata.
• Do not delete anything, even if it seems unhelpful. The defence can decide what to use; deletion is permanent and can be detected.
• Do not hire an expert on your own without checking whether the report would become part of the file and who will see it.
• Do not post about the case or the evidence online. Posts can be read by the other side and by witnesses.

When you are unsure, photograph, note the date and wait for advice. The same caution applies to relatives and friends who offer to help: an offer to speak to a witness on your behalf is kind, but it can undo weeks of careful work if the witness feels pressed.

When the evidence is in another country

Evidence located abroad is among the hardest to use. A bank record in a foreign branch, a message stored on a server elsewhere, a witness who lives in another state, a place that can only be visited by travelling: each requires thought about how to collect it so that an Italian court can rely on it.

Formality is the issue. A statement taken abroad by a foreign lawyer in the form used there may not meet Italian requirements, and a document without proof of origin may be disregarded. The defence should say early what the Italian court will need, so that the foreign side collects material accordingly. Documents in other languages need certified translations, and records from abroad may need a formal certification of their origin. Allow time.

The defence has fewer tools abroad than at home, and the state-to-state route, by which an authority asks another for assistance, is slow and controlled by the authorities, not the defence. A foreign lawyer can often move faster, by approaching the holder of the records directly and asking for a certified copy. Timing is awkward because of different working days and holidays, so plan calls and deliveries in advance. The consulate can help with identity and with copies of public records but cannot gather evidence. Both lawyers need a shared account of the facts, and anything said to an authority should be consistent with what is said to the other.

How the studio runs defence investigations

The studio starts with a conversation, in English if needed, to establish what you know and what is at risk of being lost. You are asked to send the papers listed in the case, and any material that you already hold, as originals or clear copies, by email.

A written letter of instruction sets out the work and the fees. Because investigation and expert work is billed separately, the studio agrees a budget with you in writing before it commits to costs. A power of attorney allows the lawyer to act and to appoint substitutes and technical advisers where needed.

The lawyer then builds a plan: which witnesses, which records, which places, which experts, in what order. The studio carries out the formal steps itself or through authorised collaborators, keeps a defence file with dated entries, and reports to you after each stage. Decisions on whether to place results in the file are taken with you. Offices in Rome, Milan and Naples allow meetings in person, and urgent steps, such as securing a recording before it is overwritten, are handled at any hour. Where evidence is abroad, the studio works with local counsel and with translators. It does not promise a result, and it will tell you if a line of inquiry is unlikely to help.

Words used in defence investigation papers

The documents use Italian terms that have precise meanings.

• Investigazioni difensive are the investigations carried out by the defence, as distinct from those carried out by the prosecutor and the police.
• Consulente tecnico is a technical adviser or expert appointed by a party to examine a matter and to report on it.
• Dichiarazioni are statements, whether taken from a witness by the lawyer or given to an authority.
• Fascicolo del difensore is the defence file, in which the results of the investigation are collected and dated.
• Accesso ai luoghi is access to places, the power to inspect and describe a location relevant to the case.
• Termini perentori are strict time limits that cannot be extended, and which end a right if missed.
• Indagini preliminari are the preliminary investigations, the stage before any trial in which evidence is gathered.

If another term appears, send it to the lawyer before you respond. A final word on vocabulary: the defence file is separate from the prosecutor's file, and these files are often confused in translation. Material in the prosecutor's file is available to the parties after the investigation closes; material in the defence file stays with the defence until the lawyer decides to use it. When a letter says that something has been placed in a file, ask which file it means.