A few years ago someone told me about an Argentine lawyer so good that he marketed himself with a brutal slogan: «kill and come». Something like that is only possible in judicial systems as adversarial and Americanised as those in which the Prosecution plays on one side, the defence on the other, and in between a fierce battle is waged, with each party armed with its own investigators, expert witnesses and strategists.
In Spain we do not go that far –nor do we need to–, but the underlying question is legitimate: what real weapons does the defence have against the prosecution?
For years I have been saying, almost preaching in the wilderness, that if Spain took the reform of the Criminal Procedure Act (Ley de Enjuiciamiento Criminal) seriously, it would look to Italy with less arrogance and more attention. There they have something that here we do not even dare to name without a touch of foreign jargon: le indagini difensive. It is not an exotic whim; it is a way of giving the defence the same weapons as the prosecution.
In Italy, since Law 397/2000, the defence has the right to investigate on its own. The lawyer no longer merely reacts to what the Prosecution brings forward and instead takes to the field. He can question witnesses, seek new evidence, request documents, commission expert reports and rely on auxiliaries –among them authorised private investigators– to reconstruct the facts in his client's favour. To put it bluntly: the prosecution does not hold a monopoly on the truth. The defence can also go and look for it. Here we lack something of the sort to give the right to a defence the full substance that Article 24 of the Constitution affords it.
With that obsession in mind, I arrived at the Sociedad Clave breakfast –a lobby of private detectives conceived by Julio Gutiez to give us a voice– that morning when the coffee was reasonably good and the croissants fulfilled their role as a civilised excuse. On the other side of the table, Carlos Berbell, director of Confilegal; on this side, three detectives: David Sanmartin, Lola Murias and the author of these lines. David asks questions as if he had already studied each answer in advance; Lola has that hopeful look of someone who knows this profession still has a future, if they let us work.
The question we put to Berbell was as simple as it was cruel: what would we detectives have to do to stop being an exotic last resort and become an everyday tool for lawyers. They defend; we prove. Either we are part of the strategy from the outset, or we will go on being that number people call when the case already smells of a conviction.
I expected a diplomatic answer, the kind that serves to keep everyone happy. But Carlos Berbell chose to answer in earnest. And answering in earnest today means talking about the new Ley de Enjuiciamiento Criminal. In a few sentences he made the essentials clear: criminal investigation is concentrated in the Prosecution, the figure of the guarantees judge (juez de garantías) appears, and the practical result is more control over communications, more secrecy and fewer leaks. For judicial journalism, an earthquake. For public opinion, deeper shadow.
And yet, in that landscape that is darker for journalists, Berbell saw a different horizon for detectives. If the investigation phase lies in the hands of the Public Prosecutor's Office (Ministerio Fiscal) and the popular action is narrowed, the real margin left to the defence is extra-procedural investigation, the kind directed not by the State but by the lawyer with his own resources. That is where detectives' reports cease to be a mere ornament and begin to resemble a genuine investigation by the defence.
Berbell spoke –as the private investigation student Sara Formoso recalls– of an «American-style solution»: on one side, the Prosecution and the security forces; on the other, the defence lawyer accompanied by a detective, building his case on his own terms. As I listened to him, I was translating in my head: he was not describing a procedural fantasy, he was describing, in other words, the model that Italy has been applying as a matter of course for years. There the defence counsel does not merely wait: he investigates. Here we are still arguing about whether detectives may investigate crimes.
The conversation turned, as is now inevitable, to artificial intelligence. Generative AI, to fabricate realities; predictive AI, to suggest decisions. At the CENDOJ, AI systems are already being used in the service of judges, and no one would stake their life on the idea that, within a few years, straightforward cases will not end up being filtered by formulas that no one has voted on. In this context, the detective ceases to be a quaint character and becomes something serious: the professional witness of what is real. The one who was there, who took the photograph, who can say «this is how it happened» without an algorithm being able to contradict it.
It will not be enough to present a technically flawless video or audio recording. It will be necessary to explain who obtained it, when, how and under what guarantees. If artificial intelligence multiplies the possibilities of manipulating evidence, the detective can be –if allowed– the human antidote to that manipulation. This is not analogue nostalgia; it is simply a democratic necessity. The chain of custody can no longer be merely technical: it has to be human, traceable and professional. And that demands clear protocols, specific training and express legal recognition.
The other major topic was access to information. What was once open to consultation is now shielded behind new layers of data protection understood as a wall rather than a safeguard. Privacy is invoked to armour what is in reality opacity. Berbell championed Confilegal's approach: information that is as neutral as possible, clean data so that each reader can form their own judgement. Information as something sacred; opinion, like this article, as an addition that must be clearly distinguished.
As I listened to him, I glanced sideways at David Sanmartin and Lola Murias and thought that our profession is at that very turning point. Either we accept that the detective can and must form part of a genuine defensive investigation –with clear rules, clear responsibilities and express recognition in the law– or we will go on being the discreet extras in a film that others always star in.
The reform of the LECrim, with all its nuances, opens a narrow window. Whether it becomes a door or a closed peephole will depend on what we do now. If the legal profession demands a Spanish-style model of indagini difensive and we detectives rise to that challenge, perhaps we will achieve something more than slipping a bit of foreign jargon into legal talk shows. Perhaps we will manage to ensure that the defence, truly, can also go and seek the truth and not merely endure the one that falls upon it.
The only question left to answer is whether the legislator will have the courage to incorporate it, whether the Public Prosecutor's Office will allow itself to face a competitor who does not have one arm tied behind their back, and whether the Judicial Police will accept that, with a defence lawyer wielding the same weapons as the prosecutor –hand in hand with a private investigator– the evidence obtained through "police intelligence" will have to be traceable.
We would have a fairer criminal process, a procedure with more safeguards and a right to a Defence with a capital «D». True, there would be no need to go as far as «kill first and come and see me»; it would be enough to be able to promise something far more honest: we will defend you truly and with the truth. All that remains now is for the legislator to have the courage to write it into law.
Francisco Marco
Fellow of the Royal European Academy of Doctors
Doctor of Law. Private Detective
