11 Apr cross-examination of witnesses

The examination of witnesses in criminal proceedings is a key moment in the formation of declaratory evidence in the accusatory system outlined by the criminal procedure code, representing the privileged place of explication of the principles of orality, immediacy and contradictory, as well as the implementation of the right of defense enshrined in the art. 24 Cost. and due process pursuant to art. 111 Cost.; the relative discipline, contained in articles. 194–207 e 498–500 c.p.p., outlines a model in which testimony is understood as a narration of facts perceived directly by the declarant, with exclusion, generally, of evaluative judgments, except those inseparably connected to perception (the c.d.. “perceptual evaluations”), according to a now consolidated orientation of legitimacy jurisprudence (Cass. pen., Sez. III, n. 37140/2010), while on a subjective level the principle of general capacity to testify pursuant to art. 196 c.p.p., which leads to possible cognitive deficits, psychological conditions or personal situations of the witness affect exclusively the credibility and reliability of the testimony and not its admissibility (Cass. pen., Sez. V, n. 9803/2016), consistently with the favor for the acquisition of evidence typical of the system; the witness is also burdened by a rigorous obligation of truth, sanctioned by the art. 198 c.p.p. and protected by the criminal sanction of false testimony pursuant to art. 372 c.p., as well as the obligation to present oneself and respond, with the possibility of forced accompaniment in the event of unjustified absence; from a dynamic point of view, the exam is divided into the direct exam sequence, cross-examination and re-examination, which constitutes the procedural translation of the dialectical method of forming evidence: direct examination, conducted by the party who requested the witness, it is characterized by the prohibition of suggestive questions and the need to encourage spontaneous and non-extra-directed narration, while the cross-examination represents the central moment of the cross-examination, in which suggestive questions are allowed and consistency is tested, the accuracy and reliability of the declarant, constituting it, as stated by the United Sections (Cass. pen., n. 36747/2003), essential and indefectible expression of the right of defence; the review, in the end, it has a clarifying and rebalancing function with respect to the stresses that emerged in the cross-examination; in this context, the institution of disputes governed by art. assumes particular importance. 500 c.p.p., which allows the parties to compare the witness with previous conflicting statements in order to highlight the contradictions and influence the reliability assessment, provided that, according to the general rule, such statements cannot be used as proof of facts but only for credibility purposes, except in the exceptional cases provided for by the legislator (such as intimidation, violence or illicit agreements) and strictly interpreted by jurisprudence (Cass. pen., Sez. Unite, n. 20804/2019), which underlined the need to concretely verify the reliability and genuineness of the previous declaration; equally relevant is the regulation of indirect testimony pursuant to art. 195 c.p.p., that, although admissible, is subject to stringent limits, imposing the indication of the primary source and making the usability of the declaration subject to the possibility of examining the latter, except in cases of objective impossibility, according to a constant orientation of the Supreme Court (Sez. II, n. 34843/2017), in line with the need to preserve effective cross-examination on the source of evidence; the evaluation of the testimony is left to the judge according to the principle of free belief pursuant to art. 192 c.p.p., but this discretion is bound to compliance with logical-rational criteria and maxims of experience, which require us to consider the internal coherence of the story, its concordance with other evidence, spontaneity, linearity and the absence of elements of suggestion or conditioning, with particular caution towards declarations coming from parties with interests or involved in the event; from a supranational perspective, Furthermore, the witness examination must comply with the principles developed by the European Court of Human Rights regarding the right to confront the accuser (art. 6 CEDU), that they require, barring justified exceptions, the possibility for the accused to cross-examine the witnesses against him (c.d. right to confrontation), significantly influencing the interpretation of internal rules, especially regarding the usability of the declarations made in the absence of cross-examination; there is no shortage, however, significant application critical issues, including the management of vulnerable witnesses (minors or victims of particularly sensitive crimes), for whom the law provides for protected methods of taking evidence (art. 498, paragraphs 4-ter et seq. c.p.p.) in an attempt to balance the needs of protecting the person with those of the adversarial process, as well as risk, widely highlighted by the doctrine (You are rich, Tonini, Illuminati), of mnemonic distortions and suggestive phenomena, which question the epistemological reliability of the testimony, highlighting how it is the product of a reconstructive cognitive process influenced by subjective and contextual variables; Furthermore, Italian judicial practice still shows a certain difficulty in the fully effective use of cross-examination techniques of Anglo-Saxon origin, often reduced to a mere formality, resulting in a weakening of cross-examination and the heuristic function of cross-examination; definitely, the witness examination, despite representing the fulcrum of the criminal trial, requires rigorous and technically aware application of procedural rules and questioning methodologies, so that it can truly fulfill the function of a privileged instrument for ascertaining the procedural truth while respecting the fundamental guarantees of the accused.