The expert report in criminal proceedings

The Criminal Court of Cassation, by judgment no. 54795 of 6 December 2017, underlined an interesting point of view on recourse to an expert report in criminal proceedings.

According to the Supreme Court, Article 220 of the Code of Criminal Procedure provides for an expert report to be obtained whenever it is necessary to carry out inquiries or to acquire data or assessments which require specific technical skills. The specific character of those skills is to be measured against the ordinary knowledge of the average person. An expert report must therefore be ordered when skills are required which fall outside the body of knowledge of the average person, at a given historical moment and in a given social context (Cass., First Division, no. 11706 of 11 November 1993, Rv. 196075). The carrying out of inquiries includes the search for and extraction of data from a given phenomenal reality and their analysis and critical reworking. The acquisition of data implies the detection, selection and organisation of data which already exist, in a manner functional to the court's requests.

The acquisition of assessments includes the identification and statement of technical notions and rules, of scientific laws, of maxims of experience and of inferences based on data already acquired by other means of proof or obtained directly through the expert operations. It is true that the admission of an expert report is left to a discretionary assessment by the court (Cass., Sixth Division, no. 34089 of 7 July 2003; Fifth Division, no. 22770 of 15 April 2004). One cannot, however, disregard the point that the expert report is an indispensable evidential tool when the condition relating to the specific character of the skills required for the acquisition and assessment of data is found to be met, even where the court itself possesses the expert's specific knowledge, because any use by the court of its private knowledge would constitute a breach of the adversarial principle and of the parties' right both to see a scientific method applied and to address the validity of that method (Cass., Fifth Division, no. 9047 of 15 June 1999, Rv. 214295).

The ontological neutrality of accredited scientific knowledge is the tool available to the court and the parties for giving objectivity and concreteness to the rule and to the judgment of personal blame. It is indeed true that the court is given the role of peritus peritorum. But that does not authorise it at all to embark on a path detached from scientific knowledge, venturing into debatable personal assessments, substituting itself for the experts and ignoring every contribution to knowledge of a technical and scientific kind. The role of peritus peritorum instead enables the court to identify, with the expert's help, the accredited knowledge which can guide the decision and to make a careful use of it, arriving at a rational explanation of the event. The expert is not the arbiter who decides the case but the expert who sets out to the court the picture of scientific knowledge in the phenomenal field to which the judgment relates, explaining the state of the debate, where there is uncertainty as to the reliability of the propositions that can be reached, on the basis of the scientific and technological knowledge available at a given historical moment.

For these very reasons the firm uses technical consultants expert in various disciplines, in order to offer the best defence.