O papel do advogado em meio à perspectiva da investigação defensiva no processo penal brasileiro

Abstract

In Brazil, criminal investigation exhibits serious structural asymmetries, making it necessary to seek an effective rebalancing between the prosecution and the defense. This article, therefore, aims to examine the role of the lawyer within the perspective of defensive investigation in the Brazilian criminal procedure, amidst legislative scarcity on the subject. Therefore, the timid advances emerge from CFOAB's Provision No. 188/2018 and Bill No. 8.045/2010. The analysis proceeds by exploring the concepts and foundations of defensive investigation, the prerogatives and limits of the lawyer's work, the challenges of its implementation, and its impacts on the protection of the accused's fundamental rights. In parallel, a comparative law study is conducted on the Italian and North American systems to illustrate its viability. The research is based on a qualitative, exploratory, and descriptive approach, using the deductive method and guided by a bibliographic and documentary review. The results show that the current penal system is sustained by inquisitorial traits, compromising the effectiveness of the equality of arms. Thus, defensive investigation serves as a tool for this rebalancing, allowing for proactive defensive action in evidence production from the pre-procedural stage. It is concluded, therefore, that defensive investigation is both compatible with and necessary for the realization of the constitutional principles of adversarial process, ample defense, due process, and presumption of innocence, symbolizing the indispensability of a procedural advance that requires technical qualification and professional specialization.