If there is no adversarial hearing, there is no evidence

“Information taken in chambers from meteorology or climatology websites may not be used for the purposes of the decision, because it is a unilateral acquisition of information which leads to the use, for the purposes of the decision, of evidence other than that lawfully acquired at trial in an adversarial hearing between the parties”.

On that reasoning, the Court of Cassation (Cass. pen., Fifth Division, hearing of 19 April 2024, no. 24117) firmly criticises the reasoning of the acquittal of the Court of Assizes of Appeal, which it regarded as “foreign to the natural order of things and to human rationality”. The court, the Court explains, may not cite in the body of its reasoning sources of evidence or so-called “open” indicia, that is material found on the internet, which have been withheld from the adversarial hearing of the parties and which concern technical or scientific notions. The judgment under discussion has the merit of bringing up to date, and restating in the digital age, the old maxim “quod non est in actis non est in mundo”.