20 Jun examination of witnesses

The examination of witnesses in criminal proceedings represents one of the central moments of the accusatory process outlined by the criminal procedure code, constituting the main instrument through which the principle of cross-examination is implemented in the formation of evidence, sanctioned by the art. 111 the Constitution. The regulatory framework finds its foundation in the articles. 194 e ss. c.p.p., dedicated to testimony as a means of proof, as well as in the articles. 496, 498 e 499 c.p.p., which regulate the methods of taking declaratory evidence in the hearing. In particular, art. 194 c.p.p. establishes that the witness must be examined on the facts that constitute the subject of evidence, excluding statements concerning mere opinions, personal appreciations or current rumors, unless such elements are inseparably connected to the facts narrated. The legislator thus intended to guarantee that the testimonial activity has as its object specific and determined circumstances, avoiding undue subjective evaluations that could alter the process of forming the judge's conviction. The ability to testify is regulated by art. 196 c.p.p., according to which every person possesses this ability, without prejudice to the possibility for the judge to order investigations into the physical or mental suitability of the declarant for the sole purpose of evaluating the credibility of the declarations made. The taking of testimonial evidence in the hearing is preceded by the admission of evidence requested by the parties pursuant to articles. 493 e 495 c.p.p., while the enforcement order is regulated by art. 496 c.p.p., which gives priority to the party who requested the assumption of the investigative means. L’art. 498 c.p.p. regulates the direct examination model, of cross-examination and re-examination, configuring a procedural technique typical of the accusatory system. The party who requested the witness first proceeds with the direct examination, aimed at reconstructing the facts favorable to one's proposition; subsequently, the other parties carry out cross-examination, aimed at verifying the reliability of the declarant, highlight any contradictions or gaps and propose a different reading of the facts; in the end, re-examination is permitted limited to the points that emerged in the cross-examination. The judge maintains a position of impartiality, being able to intervene only to ensure the correctness of the methods of carrying out the exam e, in the cases provided for by the art. 506 c.p.p., ask questions directly to the witness to clarify aspects relevant to the decision. The rules of witness examination are further specified by art. 499 c.p.p., which prescribes that the questions have specific facts as their subject and prohibits those capable of compromising the authenticity of the answers. In particular, suggestive questions are prohibited in the direct exam, that is, those that already contain the answer or induce the witness to provide a certain version of the facts, while these limits do not operate in cross-examination, whose function is precisely to subject the reliability of the testimony to critical verification. The president of the panel or the single judge has the task of preventing irrelevant questions, offensive or detrimental to the dignity of the person, as well as ensuring compliance with procedural rules. Specific procedures for taking testimony are provided for minors and particularly vulnerable injured parties, with respect to which the legislator has introduced forms of protected hearing, also through the use of technical tools suitable to avoid direct contact with the accused, in compliance with the principles of victim protection established by national and supranational legislation. Of particular importance is the regulation of indirect testimony provided for by the art. 195 c.p.p., according to which the witness can report facts learned from other people, but the judge, upon request of a party or even ex officio in certain cases, must arrange for the examination of the direct source when it is identifiable and available, under penalty of the unusability of the testimony de relato in the cases provided for by law. The same art. 195 places significant limitations on the indirect testimony of judicial police officers and agents with regard to the statements formally collected during preliminary investigations, in order to prevent documents removed from the cross-examination from being surreptitiously introduced into the hearing. On the jurisprudential level, the Court of Cassation has consistently stated that testimonial evidence must be evaluated according to criteria of internal coherence, subjective reliability of the declarant and compliance with the further elements acquired in the process, specifying that the judge is not bound by evidentiary automatisms but must provide a logical and exhaustive justification regarding the reasons for the believed credibility or unreliability of the witness. The United Sections also highlighted that the right to cross-examination constitutes an essential element of a fair trial and that any limitations on the exercise of this faculty must be based on specific regulatory provisions and be compatible with constitutional and conventional principles., in particular with the art. 6 of the European Convention on Human Rights. Legitimacy jurisprudence has also clarified that the prohibition on suggestive questions concerns exclusively direct examination and re-examination, while in the cross-examination the use of more incisive questioning techniques is permitted, provided that they do not degenerate into undue pressure or methods that are harmful to the moral freedom of the witness. The witness examination assumes, therefore, a decisive function in the formation of the judge's conviction, representing the privileged place in which the opposing views of the parties are compared through the dialectical method of cross-examination. The code discipline and the jurisprudential elaboration have progressively outlined a system aimed at reconciling the need to ascertain the procedural truth with the protection of the fundamental rights of the parties and of the subjects called to testify, ensuring that the final decision is based on evidence acquired according to legal criteria, immediacy, orality and full confrontation between prosecution and defence.