Criminal Defense Investigations
In Italy, in the common mentality, the criminal investigation is reserved to the Public Prosecutor’s Office through the Judicial Police (Police, Carabinieri and Guardia di Finanza), but in reality this is not always the case, in fact other actors may take over in the criminal proceedings.
First of all, the defendant’s defense is delegated to the lawyer, who after receiving the warrant will have to look for all the evidence to exonerate his client.
The lawyer usually carries out some investigative activities such as hiring people who he believes can provide useful information for summary testimonial information.
However, being a lawyer, he is unable to carry out other investigative activities which are often essential in criminal proceedings.
It is precisely in this context that the figure of the private investigator appears in search of exonerating or accusing evidence according to the need to be met.
It should be noted that not all private investigators can carry out criminal investigations, but only those who have obtained the appropriate authorization issued by the Prefecture and / or Police Headquarters (in the event that the investigative agency resides in an Autonomous Province). the aforementioned bodies may issue the authorization only after verifying the requisites necessary to carry out this activity, such as the applicant’s professional experience.
In addition, the authorization to carry out the profession of investigator authorized for criminal investigations can also be requested “only by persons already in possession of the license to carry out private investigation activities in the civil field pursuant to art. 134 T.U.L.P.S ..
In the criminal trial, only the lawyer is entitled to carry out defensive investigations, given that the legislator believes that only this can offer guarantees on the knowledge of the methods and procedures for taking the assessments to be transposed into the trial (under penalty of the unusability of such investigations due to the absence of formal requirements), and consequently only he is entitled to appoint the private investigator.
The assignment will be entered in a special register (in which only part of the information will be noted – for example general information and the address of the client lawyer, especially the investigative acts requested, the duration of the investigations predicted at the time of the assignment – which as a rule the investigator must make accessible) and will be communicated by the defender to the judicial authority
The activities carried out by the private investigator generally consist of:
- in conferring with people able to report useful circumstances (whose declarations must be acquired according to a precise protocol, under penalty of unusability);
- in accessing to view the state of places and things or to describe them or to perform technical, graphic, planimetric, photographic and audiovisual surveys (delegated by the defender) even in private places or places not open to the public and even if there is no it is the approval of those who have the availability (subject to the authorization of the judge);
- surveillance activities through stalking, stalking, video / photographic shooting and all activities suitable for ascertaining the facts for which one proceeds.
The private investigator may then be heard in the cross-examination between the parties regarding the activity carried out in the context of defensive investigations. In relation to the information obtained pursuant to art. 391 bis paragraph I c.p.p., the law 1 March 2001, n. 63, on the subject of due process and criminal evidence, has in fact provided for the incompatibility to testify for the defender but not also for the private investigator, except for the hypothesis in which he has taken steps to record the statements made by the person informed on the facts , pursuant to art. 197 paragraph I lett. d) c.p.p.
Furthermore, with art. 4 of the law n. 397 of 2000, art. 200 paragraph I lett. b) c.p.p., which also includes the authorized investigator among the categories of persons authorized to oppose professional secrecy “on what they have known by reason of their ministry, office or profession”.
The documentation concerning the investigations carried out by the defender in the context of defensive investigative investigations can be collected by the lawyer in the defender’s file, or an insert can be created that during the investigations can be deposited with the G.I.P and also consulted by the Public Prosecutor; at the end of the same investigations it will flow into that of the public prosecutor.
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S.A.S. Investigazioni & Sicurezza – P. iva IT 02314820222
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