Facts arising during  expert appraisal proceedings in the presence of attorneys for the defence.

It seems that he case of Ericka and Omar has not ceased to stir public interest. We discussed the case in the previous editorial and reference should be made to the article by Santo di Nuovo and Gaia Beretta entitled Female Deviancy: liability and sanction; The “The Case of Nuova Ligure as interpreted by the mass media.”  published in this number of the review. The war of words waged by expert witnesses will allow scholars, once details are available, to get some insight into how, by approaching the question from different standpoints, the charges made against them are to be evaluated. This might  suggest the need to identify some guidelines which might substantiate the concept of “premeditation and willfulness”  formulated   our criminal code.

(G. Giulotta: Elements of legal psychology and the law of psychology, Giuffre,Milano,2000.)

From the media we learn that Erika had  “confessed” to expert witnesses   to having “stabbed” her mother. According to journalistic accounts, this admission was also made to the magistrate. These events have raised problems relating to the defence and to expert witnesses

Legal authority  maintains that,  although our criminal proceedure does not make provision for such a state of affairs  notwithstanding the decrees of precedent,  attorneys are entitled to take part in expert investigations. In this regard, it is worth taking account of the following two sentences:

Cass.Pen.1, I March 1996, n.2750.

“The indication, on the part of the expert witness, in compliance with art. 229, 1 c.p.p., of the day, the time and the location where expert operations shall begin constitutes a garantee peremptorily provided for, that is, should variations ever be introduced  with regard to the aforementioned indication, the expert shall be required to inform counsel for the defence of such a state of affairs and, to the contarary, without being able to invoke the provision in paragraph 2, of the aforementioned  art. 229 c.p.p. which, providing for the simple, informal notification to the parties present, reference is made to the possible “continuation” of the operations, already underway, and therefore may not be applied in the case of any modification unilaterally decided upon by the expert not in the course of such operations and in the presence, at least virtually,of the parties, but before the operations themselves have got underway (principle stated with reference to the appraisal deposited  at the  surveillance procedure center.)”

Cass. Pen 1, 19 June, 1998, n.36.13

“As regards expert appraisal, although, in the  criminal procedure code currently in force, there is no disposition corresponding to art.304 of the abrogated code, in the section wherein it is affirmed that the defence counsel is entitled to take part, inter alia, in the appraisal process (this is a shortcoming which may be explained by taking account of the oral nature of proceedings and the tendential immediacy which characterize, in the new criminal trial, the means of proof in question),  should  maintain  that the aforementioned right does exist in any case, appearing to exclude that the 1988 legislator considered  an adequate garantee of the defence might be constituted alone by the expected and possible presence of the consultant  in accordance with art.230 c.p.p.  It folllows, therefore, that the exclusion of the defence counsel from the participation requested by defence counsel  in the operations performed by the appraisal expert, gives rise, independently of the presence or not of cconsultants of the parties,  to the nullity of the general order relating to the assistance of the accused. This is a conclusion that is also valid with respect to expert appraisal performed in the area of execution or of surveillance, the position of the person concerned being equated with that of the accused. “