HEADNOTE
The prohibition on asking questions that could impair the sincerity of the answers, in the dual sense of “leading” questions – in the meaning the term has in judicial language of questions that tend to suggest the answer to the witness or provide the information needed to answer as the examiner wishes, even through a simple confirmation – and of “harmful” questions – aimed at manipulating the witness, misleading their memory by providing incorrect information and false premises such as to undermine the very genuineness of the answer – is expressly provided for with reference to the party that called the witness, since the legislature considers that party to have an interest in suggesting answers useful to its case. A fortiori, that prohibition must apply to the judge, whose task it is to ensure, in any event, the genuineness of the answers under Article 499(6) of the Code of Criminal Procedure.
REASONS
Facts
1. The Genoa Court of Appeal, ruling on referral ordered by judgment of the Court of Cassation of 07/02/2018, partially reforming the judgment of the Court of Genoa of 15/10/2014 against C.C., appealed by the Public Prosecutor, found the defendant guilty also of the offence under Article 609-bis of the Criminal Code in respect of conduct after (omissis) and, considering it a continuation of the acts covered by the contested and final judgment, sentenced him to a total of three years’ imprisonment, consequently revoking the suspended sentence granted at first instance.
2. The procedural history. The Court of Genoa had sentenced the defendant to two years’ imprisonment for the offence under Article 609-quater of the Criminal Code, committed in August 2009, in its minor form under paragraph 4, against the minor G.A., born on (omissis), a schoolmate of his daughter, acquitting him, however, of the charge concerning subsequent sexual acts in 2010 against the same minor, when she had already turned fourteen. By judgment of 25/01/2017, the Genoa Court of Appeal, upholding the Public Prosecutor’s appeal and partially reforming the first-instance decision, also found the defendant liable for the offence under Article 609-bis of the Criminal Code, concerning the sexual acts committed against the girl, then already fourteen, consisting in taking her hand and holding it on his genitals. It therefore sentenced him to four years’ imprisonment.
3. The Third Division of this Supreme Court, seised of C.’s appeal, annulled that appeal judgment on the ground that “the appeal ruling required the appeal judges to reopen the evidence-taking in respect of the injured party, on whose testimony the first-instance decision had focused, and, in view of the analytical and detailed examination of the witness’s reliability and of the meaning of her statements developed there, to provide reasoning capable of dismantling the acquittal reasoning on each point considered relevant to the decision”.
4. The defendant, through counsel, appeals against the judgment of the referral court on two grounds, also requesting the correction of the operative part as set out below. In both grounds, he alleges misapplication of criminal law and lack of, contradictory and manifestly illogical reasoning. The first ground concerns the manner in which the injured party’s testimony was taken and assessed. The reasoning on her statements allegedly conflicts with the evidence gathered. The testimony, contrary to what is stated in the reasoning, was allegedly taken not through examination and cross-examination but through blatantly leading questions put directly to the witness by the reporting judge, thereby undermining her credibility. The Court of Appeal’s arguments are likewise flawed in conferring absolute truth on the account of a single episode instead of taking into account the complexity of the charge, which covers a period of no less than nine months ((omissis)). Moreover, when assessing the injured party’s testimony, the appeal judge allegedly failed to consider the neuropsychiatric expert report prepared by Prof. B.M. on G. in other proceedings. Furthermore, the contested judgment wrongly seeks to counter the B. report, concerning the witness’s “capacity to testify”, with Dr Tattoli’s analysis of the different issue of the declarant’s “reliability”. In particular, the reasoning is illogical in considering the B. report of little significance because it was drafted ten years after the events. The second ground concerns the reasoning of the contested judgment, which the appellant considers not “reinforced”, since it merely set its own reading of the evidence against that of the Court, entirely failing to explain the reasons for its different conclusions, especially as regards the defendant’s awareness of the injured party’s lack of consent. Finally, the appellant asks this Supreme Court to correct, under Article 619 of the Code of Criminal Procedure, the operative part so as to include an express reference to the “minor case” under the last paragraph of Article 609-bis of the Criminal Code, which was recognised, as moreover unequivocally appears from the reasoning of the contested judgment.
Law
1. The appeal is well founded.
2. The Third Division of the Court of Cassation, in annulling with referral the appeal judgment – which, partially reforming the first-instance judgment, had found the defendant guilty also of the offence under Article 609-bis of the Criminal Code, concerning the sexual acts committed against the girl, then already fourteen, consisting in taking her hand and holding it on his genitals – had instructed the referral court to reopen the evidence-taking in respect of the injured party, carrying out an analytical and thorough assessment of her reliability and of the meaning of her statements during the hearing, in order to arrive at reasoning capable of dismantling the acquittal reasoning on each point considered relevant to the decision.
3. That said, the Court notes that the irregularities in the conduct and taking of the injured party’s testimony, criticised by the appellant in the first ground of appeal, affected and vitiated the reasoning of the contested judgment, for the reasons set out below.
4. Some preliminary remarks are appropriate. The rules on the examination of witnesses are a full expression of the choice made by the 1988 legislature for an adversarial trial.
Article 498 of the Code of Criminal Procedure lays down the main rule that witnesses are examined through questions put directly to them by the Public Prosecutor and defence counsel, without the judge’s filter, following predetermined stages.
Cross-examination is structured in the three phases of examination-in-chief, cross-examination and re-examination.
It need hardly be recalled that the legislature’s choice in favour of cross-examination as the typical method of examining oral sources, as a rule removed from the judge’s monopoly, is reflected both in Article 6(3)(d) ECHR and Article 14(3)(e) of the International Covenant on Civil and Political Rights, and in Article 111(3) and (4) of the Constitution.
Article 506(2) of the Code of Criminal Procedure (as amended by Law no. 479 of 1999) provides that the presiding judge may put questions to witnesses, experts, technical consultants, the persons referred to in Article 210 and the private parties only after examination and cross-examination.
The specification that questions may be put only after examination and cross-examination was considered appropriate, since an intervention by the judge of their own motion aimed at clarifying the facts of the case and substituting for the parties is justified in a broadly accusatorial trial only insofar as it has not been possible to obtain the necessary clarification through the questions put by the parties.
5. That said, the Court notes that the manner in which the testimony was taken – conducted first and largely by the reporting judge – and the content of the questions he put to the injured party seriously prejudiced its reliability, so that the reasoning based on her statements – which clearly play a central role in these proceedings, as held by the annulment judgment itself – appears radically flawed in terms of the logical coherence of the contested judgment.
Article 499 of the Code of Criminal Procedure, as its heading explicitly indicates, lays down the “rules for the examination of witnesses”, that is, the criteria the judge must follow in allowing or prohibiting the parties’ questions.
The judge must therefore absolutely prohibit questions that may impair the sincerity of the answers (paragraph 2); prohibit the party that called the witness or has a common interest with them from framing questions so as to suggest the answers (paragraph 3); and ensure during the examination the relevance of the questions, the genuineness of the answers, the fairness of the examination and the correctness of challenges (paragraph 6).
The prohibition on asking questions that could impair the sincerity of the answers, in the dual sense of “leading” questions – in the meaning the term has in judicial language of questions that tend to suggest the answer to the witness or provide the information needed to answer as the examiner wishes, even through a simple confirmation – and of “harmful” questions – aimed at manipulating the witness, misleading their memory by providing incorrect information and false premises such as to undermine the very genuineness of the answer – is expressly provided for with reference to the party that called the witness, since the legislature considers that party to have an interest in suggesting answers useful to its case.
A fortiori, that prohibition must apply to the judge, whose task it is to ensure, in any event, the genuineness of the answers under paragraph 6 of the same provision (Sec. 3, no. 7373 of 18/01/2012, B, Rv. 252134; Sec. 3, no. 25712 of 11/05/2011, M, Rv. 250615: the case concerned in particular the examination of a minor witness, in respect of which the Court specified in its reasoning that, if it were otherwise, one would reach the absurd conclusion that the fundamental rules for ensuring proper testimony would cease to apply precisely where, because of the fragility and suggestibility of the declarant, they are most needed. For a brief review of the case law of the Court of Cassation on the subject, see Sec. 3, no. 45931 of 09/10/2014, Cifaldi, Rv. 260872).
It is therefore clear that failure to comply with the rules laid down by the code of procedure to ensure the sincerity and genuineness of the witness’s answers renders the evidence non-genuine and unreliable.
6. In the present case, the questions put by the reporting judge to the witness G.A. – as appears from the transcript of the examination attached to the appeal – are both leading and harmful, in the respective senses indicated above. They are in fact assertive questions that steer the witness towards merely confirming what the questioner postulates. The questions go into detail, with blatant manipulation of the young woman’s answers.
The questions which the Court considers such as to compromise the genuineness of the answers are set out below.
Reporting judge: “You met him, then he would sometimes drive you to school…”.
The question is leading because it surreptitiously suggests to the witness that the episode in question took place in the car.
Reporting judge: “And then, from there, there were certain relations between you”: the question, put in assertive form – such as to lose its interrogative character and give its content an air of certainty – is harmful because it blatantly manipulates the witness’s memory, providing her with false premises.
Reporting judge: “We can take the material fact as established”. This is clearly a harmful assertion because it takes for granted the very fact the testimony concerns, the one the examination of the injured party is precisely intended to prove.
Reporting judge: “You remember that you had reported that at a certain point this person, one day you were in the car like that, had taken your hand… and put it on his private parts”.
This is a leading question, containing the answer it intends to suggest, in which the judge presents the fact as established.
Questions and assertions to which G. simply responds by nodding.
Reporting judge: “Now, if you remember this episode, do you also remember whether you had a reaction, before, during or after he made this gesture?”.
The question is leading because it tends to suggest an answer to the witness, who replies: “No, I don’t remember the reaction. I know he held it there (her hand on the man’s genitals) for a while… and then I tried to take it away and after a while he took it away”. The judge continues by asking whether she had tried to take her hand away immediately and, when the woman answers no, states interrogatively: “…So as if you had accepted, at that moment, this gesture”. The question is harmful because it aims to force the injured party’s answer, who states: “No, I tried to pull back”.
After the witness said she “looked at him badly”, as if to tell him to stop, the reporting judge asks her, blatantly suggesting a confirmatory answer: “…and then, at a certain point, when he put his hand on top, did you take it to remove it?”. Once again the girl answers “Yes”.
7. The foregoing also has an epistemic impact, since the evidence indicated by the annulment judgment did not provide certain knowledge: for most of the examination, the witness merely went along, in the manner described, with the judge questioning her. The appellant’s contention that the approach described, by failing to ensure the spontaneity of the injured party’s answers, undermines their reliability is therefore well founded.
It can thus be said that the reasoning of the judgment does not meet the requirement of specifically refuting the arguments on which the first-instance judge based the different decision, nor does it satisfy the duty to give reasons as indicated by the annulment judgment.
8. The complaints in the second ground are absorbed.
9. In conclusion, the contested judgment must be annulled with referral for a new trial to another division of the Genoa Court of Appeal. If this decision is disseminated, personal details and other identifying data must be omitted under Article 52 of Legislative Decree no. 196 of 2003, as required by law.
ON THESE GROUNDS
Annuls the contested judgment and refers the case for a new trial to another division of the Genoa Court of Appeal.
Data anonymised.
It is noted that this decision is signed by the presiding judge alone owing to the impediment of the reporting judge, under Article 1(1)(a) of the Prime Ministerial Decree of 8 March 2020.
