RICERCA ITALIANA     

Research program

Scientific progress and criminal trial

University Co-ordinator

Università degli Studi di FIRENZE - DIRITTO COMPARATO E PENALE - ()

Research Unit Leader

Paolo Tonini

Description

Scientific and investigation tools progress offers to everyone, private or public entities, who has the purpose to investigate, a completely new way to do it. They almost always provide informations as reliable as damaging, so it’s necessary to carry out all their abilities and ipothetic ways to clash with constitutional rights of everyone is involved, especially when it happens without his consense or knowledge.
Besides, quick steps in scientific development make their way not only to increase investigating tools, but also to improve their methods and object. However, investigation tools, that represent the object of our research, disclose a lot of new problems, worth thorough studying. In fact, some of them could attack private life and the right to privacy must be protected. Moreover, in order to use their results in criminal trial, it’s necessary to study evidence rules. The components of Florence research unit have been studying these matter since a lot of time, as their scientific works demonstrate. The problem requires also to introduce and study the ticklish question of exclusionary rules in criminal trial.
In this way the above subject could be studied firstly with a general approach and secondly with specific purposes.
In the general research we need to go thoroughly the discipline of exclusionary rules of evidence. The debate caused in Italy by this rules is well known. On the one hand, there is the proliferation of special rules, often introduced with new acts justified by a symbolic role of model sanction and ordered to penalize infringements concerning the “quomodo” of evidence, which would structurally complement hypothesis of illegality (“nullità”). On the other hand, there is the difficulty to understand the real meaning of the general exclusionary rule of evidence. Regarding how law provides about it, it is important to remember that, conversely, this profile is considered in the Mastella’s draft.
The Spanish experience is significant. Since 1985 the art.11 of the Ley Orgánica del Poder Judicial provides a similar formula and the result is a deep debate and a basic uncertainty in relation to the recognition of the number of fundamental rights.
If the way just indicated is not the one to run, however, in a perspective de iure condendo, we can indicate some changes to the way to provide about the general exclusionary rule of evidence. The particular question of the illicit and unconstitutional evidence must be remembered. Unresolved question from 1988. It should be specified what means the art. 191 c.p.p. when it talks about the prohibitions provided by law. Such uncertainty has led to the recent amendment of the art. 240, following the approval of the law on phone tapping. In the meantime, considering the evidence obtained by new technologies, we should study also the issue of the unconstitutional evidence, on which there is no clarity, despite the many rulings of the Constitutional Court and the doctrinal debate. Aim of the research is therefore to identify the possible pillars of a reform that will put rationality into the discipline. It is clear that such a survey must be considered as a preliminary regards to the examination of the rule of evidence obtained by every single technological instrument.
In this respect, we still have to go thoroughly the difference between evidence obtained by different proceedings in regard to the ones provided by law (“prove irrituali”) and atypical evidence (“prove atipiche”).
Since many years jurisprudence had tried to avoid the limits provided by law about evidence. Besides, although in Italy exclusionary rule of evidence is structured as an irremediable procedural defect, we must remember that many other systems, which provide similar rule, allow to surpass that defect. In Germany, Spain, England and in the United States, even regarding to the peculiarities of every system, the evidence obtained in violation of the exclusionary rule sometimes can be used because of the principle of discretion. In every single case, the Court has to make a comparative valuation between the rank of law infringed, the seriousness of the infringement, the usefulness of the data, the behavior of the right’s owner, the function of the infringed rule.
It’s necessary to ascertain in which ways our system, whose principle is that evidence can be excluded only by provisions of law, could relate to the rules of other countries.
In Italy, the general exclusionary rule of evidence has been created ex novo in 1988 to penalize adequately the faults of the evidence. Actually the absence of remedies for this sort of infringement was the distinctive character of this form of invalidity. But it is not said that this element is necessary. Moreover, the rigidity of the system of exclusionary rules of evidence is already attenuated in practice by that jurisprudence who tries to rehabilitate evidence through interpretative escamotages, not always declaring it.
The best exemplum concernes with the discretion hidden into the valuation about the real existence of an exclusionary rule. In the same point of view a lot of cases established that evidence can also be valid only for the defendant. Besides, the choice between accepting or not that the infringement of an exclusionary rule of evidence can be passed on consequent acts depends by the need to overcome the defect and preserve some essential elements to proof the facts.
In this view, we need to consider some other rulings that let us really understand law in action. Think of the judgment, of the Sezioni Unite, Esposito (Cass., sez. un., November 17, 2004, in Cass. pen., 2005, 357), concerning the acquisition of authorizations of interceptions arranged in other proceedings, that says that the Court is not obliged to seek the proof that demonstrates the enforceability of the exclusionary rule of evidence; the parties has the burden of that proof.
Once outlined the background of reference following the general research, it is to be deepening the special part of the research.
At first it is necessary to understand if and what degree new technologies could be used in criminal trial to obtain evidence. Usually, it is a question that does not find its rules in law, in relation to which admissibility limits must be studied in deep. Moreover, in relation to the DNA evidence the clash with the others’ trial parties right to proof is particularly pointed out: the possibility of error respect to an examination, although founded on consolidated scientific principles, notices the necessity of a re-test executed by the adverse part. The fact that such instruments bring a vulnus to the fundamental rights recalls, how we said before, the complex problem of the contrast between evidence and Constitution, that is just the rules about evidence obtained in despite of constitutional rights.
According to the second profile of the research, it is necessary to go thoroughly the admissibility in criminal trial of the data acquired outside the process and for different aims (ex. video-taping), especially if the acquisition has been carried out by privates (just think to the recent vicissitudes related to the phone tapping carried out from some telecommunications societies). The issue is placed with greater intensity as a result of the decree n. 259 of 2006, conv. in law n. 281 of 2006 that has disciplined at the art. 240 c.p.p. the illegal video and phone tapping and the data obtained through the illegal collection of information. Such norm, subject of criticism and regarded as unsatisfactory from the majority, establishes a complex tie between acquisitions carried out in violation of criminal law and exclusionary rules of the results. This last matter has been invested by a deep participation of the legislator who looks on to, even if still in elaboration, numerous innovations regarding to the previous order.
It’s purpose of the Florence unit to reach a clear picture of the principles that govern the matter delineating within which limits the results acquired through the new technologies have approach in the criminal trial. Such result will hopefully have as immediate reply that one of a sifting on the consistency of the current law projects. Eventual problematic, timely marked in the course of the parliamentarians works, will be very important for the aim of the exactitude and the correctness of the discipline of positive right that, most likely, will come into force in our judicature.
It’s unavoidable, at last, a recognition of the entire matter also to European level, with the aim to characterize the expectable interactions in both directions: possible influence of the communitarian norm on our ordering; necessity that one eventual discipline of common right conforms to the criterion of maximum standard, especially with regard to the ticklish matter of exclusionary rules of evidence.