Subject: The aim of the course is to explore issues concerning testimonial evidence both through a traditional study of the relevant code law and regulations and by analyzing those aspects which place emphasis on the connection between the various testimonial figures and the facts being testified.
The course will provide a moment of reflection on the effects resulting from the entry into force of Article. 111 of the Constitution and of the related implementing law No. 63 of 2001. Topics of discussion will include the various forms of cross-examination, from an objective and a subjective perspective, the different hypotheses of derogation (implicit, contaminated or impossible cross-examination), the codification of the prohibition of proving guilt on the basis of the statements of those who have freely chosen to avoid cross-examination, and the validity of evidence of extra-judicial testimony (indirect testimony, testimony document and content of interception). An evaluation will also be conducted of the relationship between the adversarial principle and the right to silence as well as of the various figures of maker of statements (witness, injured party, witness assisted by an adviser, defendant or suspect of connected or related crime, co-defendant or co-accused), paying special attention to the guidelines of the constitutional and special emphasis questions, suggestive or leading questions and to the guidelines of the constitutional case law of the Supreme courts (including the more recent 'De Simone' ruling, Joint Divisions). As regards the taking of evidence phase, topics will include the techniques of examination of witnesses, having special regard to issues related to the specificity of the questions, leading questions and misleading questions, the various forms of control exercised by the courts, objections, the refusal to give evidence, withdrawal of accusations, and adduced evidence.
Lastly, the statute of testimonial evidence in criminal cases will be considered in the relationship between the provisions of national law (constitutional and ordinary) and those of the supranational systems, especially the provisions of the European Convention on Human Rights and the meaning ascribed to them by the Court of Strasbourg (regulations for the use and evaluation of testimonial evidence in the absence of cross-examination; comparison between the principle of 'strong' adversarial debate and that of 'weak' adversarial debate; the relationship between pre-trial
evidentiary hearing, the impossibility of taking evidence and the reading of pre-trial statements; obligations of compliant interpretation and forms restituito in integrum as per Constitutional Court ruling No. 113 of 2011).
Objective: Examining the general issues and the more practical problems related to the application of testimonial evidence, also drawing from knowledge from other, non-legal fields, and enhancing the analysis of the methods for taking evidence and of the criteria for assessing the reliability of the maker of statements.
Structure and methodology: the face-to-face lectures will be accompanied by alternative teaching methods, such as workshops or working groups, so as to encourage the participants’ involvement in the discussions and the sharing of experiences.
Candidates: judicial and prosecuting magistrates of first instance and high court.