RICERCA ITALIANA     

Research program

Scientific progress and criminal trial

University Co-ordinator

Università degli Studi di TRIESTE - SCIENZE GIURIDICHE - ()

Research Unit Leader

Francesco Peroni

Description

Considering the relation between new technologies and criminal trial, the Trieste Unit aims at developing a research articulated in two parts.
The first one concerns the connections between the acquisition of “scientific” evidence and the cross-examination method. The importance acquired by cross-examination in the formation of evidence after the reformation of the Art. 111 of the Italian Constitution invites to reflect on the successfulness of this method when applied to technical evidence. This type of examination implies a trial structure in which all parties have the possibility to bring to the court a useful elements of knowledge for reconstructing the facts, which undergoes the critical evaluation of the opposite party and the final judgement of the judge. In such a context, it should be checked if the introduction of highly technical elements may undermine the role of the parties during the acquisition of the evidence and to weaken the evaluation capacity of the judge.
More precisely, as long as it concerns the parties, the Trieste Unit aims at verifying whether the lack of technical knowledge by the defending counsel and the public prosecutor, may undermine the capacity of conducting the cross-examination. Should this be the case, the risk for the cross-examination method not to reach its epistemological effect would be rather high. This is the reason why – in the perspective of laws still to be established – we wish to search for possible solutions in alternative to those offered by the regulation in force, which recognise an active role mainly to the defending counsel and the examining magistrate (Italian Code of Criminal Procedure, art. 498 and ff.). The possibility will be evaluated, for example, to allow an expert of one of the parties to assist the defending counsel in examining a new source of technical evidence, i.e. to introduce a real “technical cross-examination” which promotes the direct dialogue between the expert appointed by the judge and those called by the parties.
As for the judge, giving for certain its power to appoint an official expert (Italian Code of Criminal Procedure, art. 220 and ff.), it should be verified if his capacity to assess the reliability and acceptability of the scientific evidence cannot be negatively influenced. During the evaluation process, problems concerning the rightful “practical use” of the scientific instrument arise: it should be verified if, in such a case, the scientific principle and the technical instruments used by the expert witness during the probatory experiment were correctly employed. Besides, the consequences of a superficial or approximate understanding of the probatory elements on the decision making process should not be underestimated. The level of reliability traditionally given to the technical evidence concerns the area of personal beliefs: indeed, one might wonder about the capacity of the judge to keep his evaluation independence face to an expert’s opinion. This series of problems influences the statement of reasons of the judgement and risks to lead to a real paradox: the maximum guarantee of a judicial decision rationality could be nullified exactly by the evidence, which is the most direct expression of scientific rationality.
The second part of the research is represented by the “instrumental” interrelations between new technologies and the criminal trial: new technologies are a mean to improve certain trial-related activities or to allow certain actions which otherwise would be impossible.
First, one should consider the question of the documentation of a trial process: the technical development gives us instruments which guarantee a higher and higher fidelity of its documentation. Then, one should take into consideration the remote participation to a trial court. This possibility – already contemplated in the implementation regulations of the Italian Code of Criminal Procedure, art. 146-bis – gives some evident advantage: it allows the trial to expand behind the limits of the courtroom. However, this method raise several doubts on its compatibility with some basic principles of the criminal trial: first of all the immediacy. Besides, the distance of the examined person provokes more than one problem to the defending counsel: if the defendant’s lawyer is present in the hall, adequate technical supports must be provided to allow the two of them to confer in private; if the defending counsel, on the contrary, stand by his or her client outside the courtroom, it should be noted that not all the defence activities can apparently be carried out at ease from a remote position (e.g. presentation of documents, examination of other people’s documentation, the possibility to confer with the opposite party in order to agree on the acquisition of the proceedings in the public prosecutor’s file).
In the inspection of both items, Trieste Unit would be precisely involved in a comparative study of the solution given by italian law and by other legal systems. In order to search for new legal solution, we wish to carefully analyze the european perspective of integration in evidence law.