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ISSN 2611-8858


Rules of evidence

Challenging Common Sense. The Confession Dilemma. An Analysis of the “Canaro della Magliana” Case

Common sense plays a pervasive role when we judge other's behaviours and purposes. As argued by psychological literature, our understanding of the surrounding environment is deeply influenced by several postulates on "how the world works". Jurisprudence has embraced this point of view and frequently uses these postulates in its reasonings. But what if Common Sense was fallacious? This paper analyses the downfall fallacious Common Sense statement have on the genesis and perpetuation of false confessions through the analysis of three of them: people do not lie against their interest; humans are good lie detector and this ability can be trained; healthy individuals do not generate false memories. By debunking these myths the aim is to expose the frailty of judicial reasoning when it comes to confessions. The last part of the paper analyses the case of "il Canaro della Magliana" exposing the fallacies in the genesis and evaluation of the alleged perpetrator’s confession

Reflexiones sobre el proceso sancionatorio administrativo chileno: debido proceso, estándar de convicción (prueba) y el alcance del sistema recursivo

The paper examines various issues related to proceedings aiming at applying administrative sanctions under Chilean law: whether, and to which extent, the fair trial guarantees in their “criminal limb” should apply to these proceeding; which should be the standard of proof required in these proceedings; and which judicial remedies should be provided against a final decision imposing an administrative sanction.

La incorporación de la investigación administrativa como prueba en el proceso penal

The paper analyses the Chilean criminal procedure rules according to which the statements rendered by people charged in administrative proceedings (as well as in other kind of proceedings where the privilege against selfincrimination and the right to remain silent do not apply) can be admitted as evidence in criminal trials.

Il principio di proporzionalità nell’era del controllo tecnologico e le sue implicazioni processuali rispetto ai nuovi mezzi di ricerca della prova

The paper focuses on proportionality with respect to electronic surveillance, often used in criminal investigations. Firstly the matter is analysed from a supranational standpoint, taking into account the legal framework and the relevant case-law; secondly, the analysis goes deeper into the Italian legal system, showing how the notion of proportionality is sometimes misunderstood.

Observations in order to the evidences in the different models of forfeiture

The author, after an overview of the different confiscation models in the national legal system, with particular regard to the so called confiscation “per sproporzione”, focuses on the necessary profiles concerning the application of the measure in the different models. The trend emerging is that the legislator tends to release the ascertaining of the confiscation from the application. But a similar trend might have a negative impact on the efficiency of the new punitive system based on confiscation.

The new discipline of the computer sensor between investigative needs and protection of fundamental rights From “scurato” judgment to interception reform

The new face of organised crime has got the traditional systems of investigations into troubles, highlighting investigation inability of judicial authorities to combat effectively drug trade and spread of child sexual abuse material on the internet. Only through computer investigation, investigative bodies are able to seek and ensure the probative data. The new investigation horizon is interception of communications among present (and search) through computer collector. That is a system which permits image and sound collection remotely through forwarding of a malware on a target device. The legislator has been waiting for more than ten years for regulating the use of the new investigative instrument by the introduction of the Legislative Decree December 29 th 2017 n. 216. This collects largely the proposal of “Scurato” judgment and numerous suggestions offered from the doctrine in the last years. The examining Judge is responsible to recover the real control function on the investigative project hypothesized by the prosecutor in order to safeguard the constitutional values involved in the use of the mean.

Environmental damage and its consequences on human health

The paper deals with the use of epidemiological evidence for the purpose of proving the causal link between polluting conducts and the harm to human health, under the new environmental crimes introduced in the Italian penal code by law n. 68 of 2015. The attention is focused on articles 452-ter (death or personal injury as a result of the crime of environmental pollution) and 452-quater (environmental disaster) of the penal code. The author provides the interpretation of these provisions, pointing out several shortcomings related to their drafting and their penalties, and then addresses the issue of the relevance of the epidemiological measures of the "relative risk" and the "attributable number". This part of the paper takes into account the different positions that have emerged in legal doctrine and reaches the conclusion that such epidemiologic measures may, under certain conditions, provide evidence which is relevant not only for the proof of the environmental crimes, but also for the offences of homicide and personal injury.

Probability and Criminal Process in the Age of DNA Evidences

The relation between probability theory and the law of criminal evidence finds its roots in the history of criminal justice. Nevertheless, the scientific debate in recent years has underlined the necessity of a deeper, detailed study on this strong relation, especially with reference to the strengthening of the rationality of the modern judge. The DNA bursting into courtrooms sets today new questions, and invites to look at the recent theories on logic of probability and criminal process with less scepticism.

The Impact of the European Investigation Order in Criminal Matters on National Evidentiary Rules

It is difficult to fully understand the future impact of the European investigation order in criminal matters on our legal system. We can already see, nevertheless, a reassuring part of the new EU Directive 2014/41, which ensures the protection of national rules of admissibility of investigation proceedings, and one, however, more worrisome, relating to evidence collection methods. The Directive does not guarantee, regarding the latter, that all of the national regulations will be strictly followed. However, the principle of proportionality which is set forth in Article 52 §1 of the Charter of Fundamental Rights of the European Union assists us, as it is aimed at ensuring a reasonable balance between the preservation of national security and the achievement of the European Union objectives, under penalty of exclusion of the evidence collected. This is not a perfect remedy, but - in a globalized legal system that has lost control of the traditional legislative matters in question - it assumes the burden of justifying any departure from our standards. The hope is that the rules of evidence that will derive are sufficiently balanced and predictable in their outcome, as is required by the principle of procedural legality.