Use of the expert report in another procedure

Usefulness of the expert report of another procedure (Criminal Cassation, section V, filed on June 9, 2022, no. 22586).

Usefulness of the expert report of another procedure: the Criminal Section of the Supreme Court sets the limits.

“The usability of the expert report prepared in another trial should be considered conditional only on the circumstance that the accused in that trial was assisted by a lawyer who intervened in the taking of evidence.”

The Court of Appeal of Turin upheld the sentence by which the Court of Asti had sentenced the accused to the estimated sentence of justice and to compensation for damages arising from the crime in favor of the civil party, in relation to the crimes referred to. in articles 614 of the Penal Code, in aggravated form, thus reclassifying the original accusation in accordance with art. 610, cp; 582, 61, n.11) quinquies, cp; 612 bis, sections 1 and 2, of the Italian Penal Code, committed to the detriment of his ex-partner.

Against the judgment of the Court, of which it requests the annulment, it filed an appeal of cassation alleging the violation of the law and the lack of adoption of decisive evidence, in order, on the one hand , of not accepting the request for renewal of the previous hearing, once to obtain the completion of an appraisal in order to ascertain the capacity of understanding and will of the accused at the time of the commission of the crimes, on the other hand, the acquisition of the appraisal agreed during the hearing held before the Court of Alba, which ended with a sentence handed down on 10.5.2013, in which the criminal responsibility for the crime referred to in art. 572, Penal Code, always committed to the detriment of the same former cohabitant.

The Supreme Court rejects the complaints.

Based on the expert report of the Court of Asti, which had stated “the criminal responsibility of the accused for the crime referred to in art. 572 of the Penal Code, it was found that there was a lack of objective pathological or dysfunctional elements that made the defendant’s ability to understand and wanted to be considered diminished, or excluded, at the time of the facts “.

These conclusions, drawn up in February 2013, highlighted by the Territorial Court, explain their effects also in reference to the other criminally relevant conduct object of this procedure, as they are partly contemporary (the persecutory acts are located from from 2012 to January 2016), partly after that date (August 2014 for other positions).

Well, there is no doubt that it is legitimate to cultivate on the usability of the expert report of the Court of Asti.

The usability of the expert report of another procedure is indisputable, as it is a means of proof far removed from the prohibition in accordance with art. 238 of the Criminal Code, section 2a, relating to the reports of the statements of evidence of other criminal proceedings to which the assessment cannot be derived.

It is true that more recently a different option has emerged in the jurisprudence of legitimacy, ensuring that the statements made by the Consultant in another trial, together with the report obtained therein, are useless if the defendant’s counsel in the “ad quem” has not participated in its recruitment.

However, even if the expert report attributable to the category of “evidence files of other criminal proceedings” is to be considered, the usability of the expert report drawn up in another trial should be considered conditional only on the circumstance that the defendant in this trial was assisted by a lawyer, who has participated in the contracting of the evidence in question, in accordance with the rule provided by art. 238 cpp, paragraph 2 bis.

This seems to be consistent with the justification of the rule, which is precisely intended to prevent the use of evidence presented against him in a proceeding in which he has not been put in a position to exercise his right of defense.

In the rest, the defensive relays do not reach the mark; Dismisses the action with conviction on the coast.

Lawyer Emanuela Foligno

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