RICERCA ITALIANA     

Scientific progress and criminal trial

Università degli Studi di Firenze

Abstract

The also comparative research will elaborate and deepen the issues concerning the scientific nature of criminal evidence, through the classification of the notion itself and the characterisation of the modalities of taking the single scientific-technical measures of inquiry as a probative legal instrument into the criminal trial, to conjugate the needs of facts-reconstructing in the criminal trial and the limits of the existing procedural mechanisms, through which new cognitive scientific-technical resources can be taken as probative means of obtaining evidence (Unit of Milano).
Further aim of the research is the individualization of the typologies of new technologies to use in the investigations, just to point out a system that considers their structural and functional characteristics. Particularly, the research will check the computer investigations, the tools for the control of the transmissions by internet and of the flows of e-mail as well as the interceptions of communications; the use of GPS; the access to public and private databases and the software for tracking; the computer ballistics; the scientific investigations; the judicial graphology; the interceptions of telephone and environmental communications; the audiovisual connections.
It will need therefore to identify and describe the operational modalities of the technical-scientific investigative tools and the formalities of their documentation, fundamental for their reliability; deepening the matter of the defensive guarantees and the contribution of the expert-witness of the part. Aim of the research is also to analyze the effects of such evidences on the trial system, especially regarding the role of the judge about the admissibility inquiry of evidence obtained by new technologies (Unit of Foggia).
Afterwards, the research will focus on the connections between the acquisition of “scientific” evidence and the cross-examination method. The goal is to check if the introduction of highly technical probatory means may undermine the role of the parties during the acquisition of the evidence and weaken the evaluation capacity of the judge. Another part of the reserach concerns the “instrumental” interrelations between new technologies and criminal trials: they involve on one hand the documentation of trial activities by means of more and more sophisticated technical instruments, and on the other hand the remote participation to trials. In the inspection of all items, Trieste Unit would be precisely involved in a comparative study and in an analysis of the european perspective of integration in evidence law.
The following step consists of studying the limits of the admissibility of evidence, obtained by such tools, especially when they involve constitutional rights subjected to the attacks of technology as well. The problem is important not only in the matter of police inquiries, but it also deals with exclusionary rules of evidence in criminal trial when obtained by new investigation tools and technologies (Unit of Firenze).
The investigation will focus on the limits to and the ways of using technologies in the criminal trial with a view to striking an effective balance between a formal suspect’s or a defendant’s personal interest to privacy and the collective interest to combat crime. Besides the research will study the limits to the intervention into the lives of third parties unrelated to the individual trial without their consent; the definition of a legal framework regulating the destruction or storage of and access to private information; the definition of a systematic framework of criminal penalties designed to prevent unlawful intrusions (Unit of Roma). <<<

Principal Investigator

Paolo Tonini Università degli Studi di FIRENZE

Research Objectives

The unstoppable scientific development and the increase of technologic tools, that realize its applications, orders a lot of changes in criminal trial too: the assessment of crime can’t avoid scientific evidence. However, the research needs to deepen the concept of scientific evidence, in the purpose of understanding its structural characteristics and rules. On this basis, the research intends to study every single investigation tool that makes use of new technologies. The aim of the inquire is to study the matter both in the static and in the dynamic view. First, the characteristics and the types of these new investigation tools will be analysed, with particular regards at the defensive guarantees; afterwards, the way to get in the trial the results, obtained by these instruments, will be studied.
The aim is to understand if bringing scientific knowledge in criminal trial weakens the role of the parties and the discretion of the judge.
Besides, it’s obvious that, testing the admissibility of evidence obtained by new technologies, the research will study also if any exclusionary rule of evidence, based on the encroachment of a constitutional right, works.
The purpose is to outline a clear picture of the principles of the matter, giving some limits for the access in the criminal trial of those cognitive results obtained by new technologies. This result will be useful to control the rightness of the bills that the Parliament is analysing.
The right to privacy is certainly subjected, in a lot of possible ways, to the attacks of new technologies, so the research has the purpose to study the limits and the ways to use new technologies in criminal trial, in details. Essentially, the aim is to understand, in the objective and subjective point of view, how privacy can be damaged, and then try to suggest an adequate discipline, resulting by a reasonable comparison with the requirements of protection of the society in the meaning of prevention and punishment of crimes.
The whole research will consider the influences of the European Union and the International law. In fact, the judicial cooperation, and the assumption of the mutual recognition of the states, need common rules and guarantees. <<<

First Results

The research aims at ambitious results. First of all, it wants to define and study in details the concept of “scientific evidence” in order to understand, on a general level, all the relevant aspects of this topic and its regulation.
After that, it is supposed to draw a clear picture of the characteristics, functioning, and heuristic suitability of each instrument of investigation based on technology. Our purpose is therefore to find out which of the several kinds of technologies can be used for criminal investigation in order to elaborate a systematisation which considers all their structural and functional characteristics.
We will focus, in particular, on: digital evidence, internet transmission and e-mail flux monitoring, tracing and GPS system, access to public and private data base, wiretapping and open-air interception, handwriting analysis, forensic science in general and audiovisual connection.
We intend to identify the operative procedures and methods of acquisition related with technological instruments of investigation, the means to report those activities in order to guarantee their reliability, going into the theme of the right to counsel and the role of the expert witness thoroughly. All those topics will be analysed from both the point of view of the prosecutor – or the law enforcement agents – and of the defendant’s counsel.
Our intention is to mark the effects of those probative elements on the criminal trial, starting from the basic issue of the (real or presumed) atypical regulation of the instruments of investigation that uses modern technologies.
Other relevant aspects will be eventually unveiled at the end of the research, for instance with respect to the chance to use a scientific evidence in order to authorize a precautionary measure, or decide for an acquittal at the end of the preliminary hearing, and what is the required standard for them, without failing to consider the judge’s role in the perspective of the use of the same technological instruments of investigation as evidence in the trial.
Not only we aim at theoretical results – taking into consideration the need that cannot be postponed of systematisation of this subject matter that is still in a rough stage of development – but also we can foresee useful results for the legislator, waiting for the reform of the actual regulation, and for those who daily administer justice. We refer, for example, to the use of the computer technology to report the carried out activities (within the broader project of telecommunication in the criminal trial); to the institution of investigative data base for the benefit of national (and maybe foreign) prosecutor offices in order to simplify the investigation on terrorism and organised crime, to the introduction of adequate technologies to improve communications; to the possibility to extend the regulation about audiovisual connection, especially to the juvenile trial and in those trials in which the minor is a victim or a witness; to the creation of a control on the lawfulness of telephone and electronic tapping and on the monitoring of the internet, of the e-mails fluxes, of the satellite tracing and the use of tracing software.
It is important to outline precisely the methods of acquisition of the output of the several instruments mentioned above in the trial hearing. This is necessary in order to verify the risk that highly technological instruments may weaken the role of the parties in the phase of acquisition of evidence and it might also reduce the power of the judge. In order to avoid such inconvenience, it is necessary to make clear the criteria for the evaluation of the scientific character of an evidence, the modality of the cross examination on the scientific evidence, the criteria addressed to the judge who evaluates such instruments of knowledge, avoiding the risk that the expert report may turn into a legal evidence which ties the free convincement of the judge.
Another aim consists in fixing the principles regulating the exclusionary rules in the criminal procedure and, in particular, in outlining the limits according to which the results achieved with the application of new technologies enter the trial. The right to privacy is particularly exposed to the most invasive technologies. As well as making clear about the legal nature of the right to privacy, whose constitutional rank was questioned in the past, this project wants to understand any possible damage coming from its violation, either from the subjective or the objective point of view, in order to propose adequate ways of protection, thanks to a reasonable balance with the interest in crime prevention and prosecution.
Another relevant result consist in setting the outlined inquiry in a supra-national landscape. An immediate confirmation comes from the fact that the judiciary cooperation and the principle of reciprocal recognition force us towards the creation of a common legal and protection system.
Concerning the interest in the development of knowledge, our inquiry can contribute in real terms to the form (or to the reform) of a bill for a new code of criminal procedure. The study of evaluation criteria of the scientific character of evidence and the error rate analysis in the new technologies make up a background, out of which any reform on this topic risk to be out of the contest on which it acts. At the same time, the examination of the concepts of “unusable evidence” (inutilizzabilità), illicit evidence and unconstitutional evidence is necessary in the perspective of a reform that have being waited since the sixties and that will eventually outline clear and precise criteria to understand the ubi consistam of acquisitions that sometimes cause the violation of the fundamental rights. In many cases, the damages are directly proportioned to the heuristic suitability of the elements that enter the trial.
The potentialities of this research seem to be relevant. The means of evidence we are going to study become decisive for the results of a wide number of criminal cases. Up to ten years ago, testimony and confession were considered the main evidence. Today, science represents very often the key element of the trial. Let us think of some wide known legal cases, to which the media paid great attention, such as Cogne, Garlasco and Unabomber. In those cases, the results of scientific tests were carried out by the expert of the judge and by the expert of the counsel and, in some of them, determined the end of the trial. Beyond those cases, though, there are hundreds of trials which remain completely unknown to the crime news.
The contribution given by the “blood pattern analysis”, the DNA test on small, decayed or mixed samples, and several other scientific techniques in constant development, is day by day more important. Let us think of the impressive results given by the so called “Innocence Project”, carried out in the United States, which required to do the DNA test on samples coming from crime scenes and regarding criminal trials in which the defendant had already been sentenced to death. The Project revealed the innocence of about 200 people, through the application of a new method to study genetic identities.
Even though we have underlined the central importance of the scientific investigation and evidence, sometimes the investigations get stuck and they are not able to give satisfactory results, or, even worse, the results are denied by the application of a different or up-to-date scientific method compared with that used before, or they are characterised by an undetermined rate of error, leaving to the judge a reasonable doubt that will lead to an acquittal.
So, the research is supposed to bring light to the dark side of the scientific evidence, al least stating clearly at what degree a scientific test is able to influence the evaluation of the judge, outlining the difference between statistic probability, typical of science, and logic probability, that is the basic rule on which legal epistemology is based. <<<

Timescale

24 months

National and international background

All the Research Units have been studying for several years the matter of the scientific-technical evidence, with peculiar attention to the elaboration of criteria and procedures about the concept of “scientific” evidence, in order to be able to consider it admissible as a probative means of evidence into the criminal trial.
At Milano “Università degli Studi”, chair of Criminal Procedure, a deep “in the field” research was conducted, both at Italian and US Universities. Such a research led to the publication of Prof. Oreste Dominioni’s monograph “La prova penale scientifica – Gli strumenti scientifico-tecnici nuovi o controversi e di elevata specializzazione”, Milano 2005, as well as to several doctoral thesis, publications on specialised legal periodicals, note to verdicts, that focused on scientific criminal evidence, also through the analysis of the rules of taking the single scientific-technical means of proof, that have been already introduced and evaluated in court or will be exploited in the future in the criminal trial. In addition to this, a wide analysis was conducted on the evolution of US case law concerning the specific topic of the elaboration of the concept of scientific criminal evidence and the rules of its admissibility.
Also the components of the Research Unit of Florence have been studying for years the matter of the scientific evidence and have written articles and monographs about it. Especially, remember: Paolo Tonini, Progresso tecnologico, prova scientifica e contraddittorio, in Aa.Vv., “La prova scientifica nel processo penale”, supervised by L. De Cataldo Neuburger, Padova, 2007, 49-82; Id., Prova scientifica e contraddittorio, in Diritto pen. e proc., 2003, 1459; C. Conti C., Accertamento del fatto e inutilizzabilità nel processo penale, Padova, 2007; P. Felicioni, Accertamenti sulla persona e processo penale. Il prelievo di materiale biologico, Milano, 2007.
The research project takes, as own scientific basis, the studies and the results of the meetings organised by the supervisors of the Operating Units. An exemplum is the meeting about “Scientific evidence and cross-examination” (“Prova scientifica e contradditttorio”), supervised by Paolo Tonini, during his presence at CSM, that took place in Rome, in July 2005. The present project has the purpose to increase and elaborate this basis.
Except for these works, the Scholars’ interest is quite fragmented and the state of the art is consequently characterised by the presence of several publications, all regarding circumscribed aspects. The impact of new technologies in criminal investigations is very significant for the preliminary phase of the proceedings, when the parties, during their own inquiries, search for evidence. If the parties don’t have the required technical and scientific knowledge, they can ask to “experts” of the matter. These knowledge is decisive to find the right way to investigate.
For all these reasons it will be very useful to study the so called scientific method of investigation and contributions of the expert-witness in specific areas such as in environmental offences or computer crimes (art. 615-ter, quarter, quinquies, 617-bis, ter, quarter, quinquies and sexies, 640-ter c.p.; art.7-bis d.l.27 luglio 2005, n.144), or offences for informatics spreading and commerce of pornographic materials concerning infants, or offences for falsification and piracy (We remember the so called IPRED2 (Intellectual Property Rights Enforcement Directive, COM/2006/168/FINAL) proposed by the European Commission, that aims to create an European investigation organ and enforce IP privates’ rights and interest.
A short analysis characterizes also the effects of the development of science epistemology and technology during the trial.
If the scientific evidence helps the assessment of facts during the trial, it also gives rise to several problems. First, because its study must take into consideration the still very common opinion that tends to connect and limit scientific evidence to the so called atypical evidence, regulated by Italian Code of Criminal Procedure, art. 189. Besides, the direct employment of new technologies allowed the trial to expand behind the courtroom. The so-called remote participation, in particular – which is regulated by the implementation regulations of the Italian Code of Criminal Procedure, art. 146-bis – allows to overstep space-and-time obstacles. This fact, however, causes great treatment disparities if compared with the normal way of conducting a cross-examination among people present in the courtroom. Banal practical needs (generally related to the defence) such as modality and limits of the private contact between the defending counsel – physically present in the court – and his or her client – assisting from remote – are still not regulated by the law.
During the analysis of the scientific basis of the research, we also have to remember the rules of evidence. The requirements of ascertain facts by trial can’t justify an indiscriminate access in criminal trial of every sort of information, even if obtained in contrast with constitutional rights. In this view, actually, in spite of the delicate matter, law doesn’t really help us; on the contrary, the exclusionary rules of evidence obtained by new technologies find their regulation most in decisions of “Corte di cassazione” or in some pronounces of “Corte costituzionale” (ex. about video-tapping). Moreover, we must remember the bill n. 1638, regarding phone-tapping, approved by “Camera” on april 19th, 2007. Besides, actually we’re still waiting for a decision of the Parliament on bill n. 1967, that holds the rules on coercive biological samples and how to use DNA profiles. A new government bill about DNA database is going to be introduced.
Regarding privacy too, there some scientific acquisitions that we have to consider. The right to privacy is a constitutional one. It is to be construed to mean the exclusive knowledge of one’s private matters, as an inalienable aspect of the human being itself. Title to such right must be granted to private individuals. The content of such right is constituted by the exclusivity of knowledge: no one may look into or disclose what happens in somebody else’s private realm without their consent. The object of the right is represented by all that relates to somebody’s private life and which somebody else could learn about: from physical and corporeal data to mental, social and intellectual information; from material situations to behaviours, inter-personal relations and material things. The criterion for distinction between public and private for the purpose of determining the scope of the right must be of a qualitative type: indeed it must be found not in the nature of the place where the events actually occur, but in the nature of the interest affected by the facts. The right to privacy may be attacked in two ways: through indiscretion, i.e.: looking into somebody else’s private life, or through disclosure, i.e.: revealing to others information about somebody else’s private life, either via private channels or through the media. Already on a constitutional level, the relationships between the right to privacy and the extent, limits and ways of the lawful intervention of the State into people’s private lives (searches, inspections, judicial experiments, expert examinations, attachments, tapping) concern mainly the issue of indiscretion. <<<