Investigação defensiva no Brasil: positividades e desafios

Abstract

This paper aims to define and analyze the compatibility and necessity of Defensive Investigation within the Democratic Rule of Law, under an accusatory system, as well as to examine the advances and challenges related to its implementation. Using the legal-dogmatic method, the research investigates how the evidentiary activity of the defense is legitimized in light of the constitutional principles of adversarial proceedings, full defense, equality, and due process of law. The study demonstrates that, although formally recognized by Provision No. 188/2018 of the Federal Council of the Brazilian Bar Association (OAB), Defensive Investigation still lacks specific regulation and faces cultural, social, structural, and practical barriers. On the other hand, its effective adoption brings significant improvements to the justice system, such as increased legal certainty, prevention of judicial errors, cost reduction, and procedural speed. It is concluded that Defensive Investigation constitutes a legitimate and necessary instrument for procedural balance and must be strengthened as a fundamental guarantee within the context of a democratic criminal justice system.