Defence investigations in Italy: the powers nobody uses
Italian procedure gives the defence its own investigative powers: interviewing people who know the facts, obtaining documents from public bodies, visiting places, commissioning expert examinations. They can be exercised even before any proceedings have started. They are formal, the results go into the file, and they are used far less than they should be.
The powers
| Power | Content | Provision |
|---|---|---|
| General power to investigate | Seeking evidence in favour of the client at any stage | Art. 327-bis c.p.p. |
| Interviewing a person | Informal interview, or a written statement, or examination before the prosecutor | Art. 391-bis |
| Documents from public authorities | Request for records and certificates | Art. 391-quater |
| Access to places | Inspection and documentation of premises | Art. 391-sexies |
| Technical examinations | Commissioning an expert, including on unrepeatable material | Art. 391-decies |
| Preventive investigations | Before any proceedings exist | Art. 391-nonies |
| Filing the results | Deposit into the file at the chosen moment | Art. 391-octies |
The last of these is a strategic decision rather than a technicality. Material gathered by the defence does not have to be produced immediately: it can be held and filed when it will have most effect, whether that is before the prosecutor decides, at the review of a precautionary measure, or at trial.
Interviewing witnesses: strict form
A defence lawyer may speak to anyone who knows something about the facts, including someone the prosecutor has already interviewed. The formalities are not optional: the person must be told who the lawyer is, in what capacity they are acting, that the conversation is for a defence investigation, that they are free not to answer, and what the consequences of false statements are.
Skipping those warnings does not merely weaken the statement; it can expose the lawyer. Done properly, the statement is usable, and giving a false statement to defence counsel is itself a criminal offence — which is what gives the exercise its weight.
One category is excluded: the person under investigation in the same proceedings and certain others may only be heard through the prosecutor or the judge.
When they matter most
- Before any charge. Preventive investigations allow evidence to be secured while it still exists, which for footage and digital traces means days rather than months.
- Before the precautionary review. The court examines the whole file, and material filed there can change the measure.
- In the twenty days after the investigation closes. The prosecutor has not yet decided, and this is where cases end without a trial.
- Where the case is technical. Medical, accident reconstruction, financial and digital cases are decided by experts, and the defence expert must be appointed before the official examination, not after.
What actually disappears
The reason for urgency is physical. Video from private cameras is overwritten in days; traffic data is retained for limited periods; premises are altered; witnesses move and forget. A defence that begins after committal is working on whatever survived by accident.
This is also why the cost of defence investigations is quoted separately from representation: it is distinct work, and it is the work that most often changes the outcome. The framework is in the note on Italian legal fees.
If you are on legal aid
The expenses of defence investigations and of a technical expert may be met by the State for a person admitted to legal aid, within limits and following the prescribed procedure. It normally requires authorisation in advance: proceeding first and asking afterwards risks the cost falling on the client.
Frequently asked questions
Can my lawyer interview witnesses in Italy?
Yes. Article 391-bis allows the defence to speak to anyone who knows the facts, subject to strict formalities, and the resulting statement can be filed in the case.
Can this be done before I am charged?
Yes. Preventive investigations are expressly allowed before any proceedings exist, which is often when the evidence still survives.
Does the defence have to show what it finds?
Not immediately. The results are filed at the moment chosen by the defence, which is a strategic decision rather than a formality.
Who pays for it on legal aid?
The expenses of defence investigations and of an expert may be met by the State within limits, normally subject to authorisation obtained in advance.
If there is evidence to secure
If footage, records or witnesses exist, they exist now and may not in a month. First contact is free and covered by professional privilege.