The genealogy of the legal form of the inquiry and defensive investigation as a counterpoint to inquisitorial truth

Abstract

This article aims to verify how the defense's investigation during the course of the inquiry leads to an enforcement of the normative force of the procedural constitutional guarantees of the accused, with a view to balancing the traditionally prosecution-oriented investigative approach, which focuses on seeking guilt at the expense of identifying evidence favorable to the accused or capable of raising doubt in favor of the presumption of innocence. However, the research takes on a considerable philosophical expression in the digression about the concept of truth, leading to the affirmation of a model more coherent with the logic of a democratic Criminal Procedure. To this end, the philosophy of language and the genealogy of legal forms were decisive for the discussions instigated here, without any pretension of being exhaustive. The present article adopts a qualitative and exploratory approach, seeking to understand the defense's role in the dialectic of constructing procedural truth and its role in affirming the fundamental procedural guarantees of the accused. The writing employed the hypothetical-deductive method, based on bibliographic research, reading of articles, study of legislation, and case law. The selection of material for analysis was driven by the need to establish an interlocution between philosophical and historical aspects related to the figure of the inquiry and the critical reflection on the restrictive participatory and discursive treatment given to the defense in preliminary investigations.