The defendant’s guilt beyond a reasonable doubt in the Italian criminal justice system

A culpabilidade do réu além de qualquer dúvida razoável no sistema de justiça penal italiano

Francesco Callari francesco.callari@jus.unipi.it

University of Pisa, Italy

The judgment criterion of the “Beyond A Reasonable Doubt” (BARD) rule has a direct impact on the forceful reasons protecting both personal freedom and innocence, which for centuries have been a core subject of reflection on the establishment of the criminal liability in Western legal culture, and in particular in Anglo-American law tradition . However, it is to be noted that currently in Italy there is a renewed attention within legal literature and case-law towards this principle, due to the legislative reform of the Italian Code of Criminal Procedure (hereinafter CCP).

In the point of fact, the Italian Law No. 46, February 20, 2006, by amending Art. 533, ph. 1, CCP, has explicitly stated that the Judge renders a decision against the defendant in the criminal proceedings «if the accused is found guilty of the alleged offence beyond any reasonable doubt». Hence, the Italian legislator has explicitly and solemnly included in the criminal procedure code the judgment criterion of “beyond any reasonable doubt” as a negative condition of the conviction against the accused.

In particular, from a logical-textual point of view, in the Italian codicistic discipline the BARD rule is formulated in a “negative” way (i.e. paying attention to the evidentiary situation that legitimizes the condemnation of the accused) and not in a “positive” way (that is to say in the perspective of the evidence that determines the acquittal), because - according to the traditional distribution of the onus probandi in the criminal proceeding - it is up to the prosecution to bring such evidence as to eliminate any reasonable doubt about the guilt of a defendant, who is presumed to be innocent until the contrary is proven.

Nevertheless, to the present day the evaluative criterion to establish criminal liability “beyond a reasonable doubt” is still generally characterized by substantial ambiguity and conceptual vagueness. Unfortunately, the concept of reasonable doubt is inherently complex and does not easily lend itself to definition or refinement. Therefore, in over fifteen years, in Italy the legislative introduction has not prevented a recurrence of different interpretations that mutually rebut each other in a fervid debate.

Precisely in this regard, this essay - through a careful analysis of various positions and elaborations developed in Italy by legal literature and case-law - aims to highlight that, in Italian criminal proceedings, the probatory and judgment criterion of reasonable doubt, without being reduced only to the subjective extent of judicial belief, is called to constitute (in implementation of the fundamental principle of favor innocentiae) a spe­cific legal method of parties’ evidentiary argumentation, of judge’s conviction and, correlatively, of decision’s rational justification. In this perspective, therefore, the reconstructive key of the reasonable doubt concept, far from postulating the need for the establishment of a static and abstract evidentiary standard, is based on the identification of a methodological path - capable of providing prescriptive modalities for the concrete formation of the judge’s conviction - to be pursued to reach that threshold of legal certainty necessary to justify the accused’s condemnation.

In some common law countries, such as the United States of America, the evidentiary and judgment rule of the “beyond a reasonable doubt” has represented for centuries a real source of pride of their democracies, as well as the cornerstone of their criminal justice.

Under careful reflection, it appears to be almost impossible to relocate without due care and necessary adjustments the BARD formula - arisen and developed at the heart of common law, through a centuries-old elaboration both of legal literature and of case-law - to civil law trial systems, where the administration of criminal justice is based on the formulation of reasoned decisions with grounds stated by professional Judges, and not on groundless verdicts issued by juries.

In truth, whereas a judicial system based on a jury poses the crucial problem of ensuring that a fair state of mind of the jurors, an “abiding conviction” on the criminal liability of the accused, is reached, in the Italian criminal procedural law the pure and simple personal belief of the Judge is irrelevant. What matters is the rational acceptability of the decision, as expressed in the pars motiva of the judgement .

By way of explanation, in common law trial systems, while it is not possible to assess the cognitive process resulting in the verdict, the type of information provided to the jury is easy to control. Conversely, within the Italian criminal justice system, the Judge’s task must be transferred in a precise and cogent legal ground for the taken decision. As a matter of fact, in light of the legislative provision, the judgment must be first and foremost expressed «specifying the reached results and the adopted criteria in the grounds of the judgment» (Art. 192, ph. 1, CCP). Furthermore, even after the recent approval of the Law No. 103, June 23, 2017, the reasons adduced for a judgment must be necessarily stated in a binary structure in which concisely the evidence fundamental for the decision and the «explanations on why the evidence in rebuttal are deemed to be unreliable» (with particular regard to some points expressly specified ex lege) are both indicated (Art. 546, ph. 1, Lett. E, CCP). The aim of all this is to legitimize, in a thorough manner, the judicial compliance with a determined historical reconstruction and the rebuttal of opposing hypotheses .

Certainly, the meaning of “reasonable doubt” as codified in the California Penal Code and mentioned in the California Criminal Jury Instructions has the absolute merit of binding, concretely and indissolubly, the «abiding conviction» with the «entire comparison and consideration of all the evidence». Nevertheless, it is not easy to contest that «considering all the evidence and weighing it in an appropriate way are very distinct things» . This formula atones also for its shortcoming of focus on the subjective state of the juror, suggesting very little about the kind of evidence necessary for conviction, but above all ignoring the process of reasoning trough the evidence altogether.

After all, this might be one of the salient points leading today towards an increasingly open discussion about the BARD “failure” in the common law experience . In other words, the problem lies not so much in the undeniable hurdle of understanding and formalizing a notion of “reasonable doubt” that overcomes the objective ambiguity and the succinctness of this linguistic and conceptual formula , but rather in the - more or less - obstinacy of legal practice and theory that keep on defining it in terms of target mental state of the jurors, thus leaving in a cryptic perspective the epistemic relevance of adversarial principle, probatory inferences, the assessment of alternative hypotheses, and the connections between evidence and final decision, hence, the whole dynamic aspect of the cognitive material operation . On the other hand, the idea according to which «it is not essential that a juror be able to give “some proper reason for entertaining it”; it may exist without his being able to formulate any reason for it» - typical of the common law tradition - appears to be intrinsically structured in a judicial system based on a verdict lacking the obligation to state grounds for it. In so reasoning, however, it is unchallengeable that «if a juror’s doubt cannot be expressed, we cannot parse it along the axis that separates the rational from the irrational» .

Therefore, an effective and adequate reconstruction of the formula transplanted from the common law tradition to the criminal procedure code in force will have to confront the distinctive features of the Italian legal experience, in which this procedural institution - far from coming to a decision only according to the subjective measure of the Judge’s belief - is basically held liable for the creation of a legal method for the parties’ argumentations, the cognition of the judicial body, and the rational explanation on the adopted decisions. When facing the codification of the probatory and judgment criterion characterizing the Anglo-American world, legal professionals have to deal with the impact of this innovation in the Italian justice system, as well as especially acknowledging, steering, and developing the strong correlation established between the “beyond any reasonable doubt” criterion and the dynamic structures of the criminal procedure adopted in Italy, where the burden of proof borne by the prosecution adds up to the obligation to state grounds for the judicial decisions .

In the wake of the 2006 reform, a position emerged in the legal literature, aiming at minimizing the real enlightening significance of this new regulation by supporting the nature of acknowledgement of a judgment rule already existing in the criminal justice system and, most of all, highlighting its abstract and programmatic nature for being a mere “token law” .

It was stated that BARD was already an immanent rule in the Italian procedural law, as it naturally accompanies the basic principle of the presumption of innocence . Art. 27, ph. 2 of the Italian Constitution (as well as by the more “precise” provision set forth in Art. 6, ph. 2, ECHR ), in particular, already provided the grounds for this guarantee criterion by considering that the persistence of any reasonable doubt on the defendant’s responsibility could never have allowed surmounting the obstacles of such guarantee. In support of the preexistence of the principle introduced by the 2006 reform of Art. 533, ph. 1, CCP in the Italian legal order, it has been especially emphasized that the codification of the “beyond any reasonable doubt” rule appears to be quite redundant, since it was already stated in Art. 530, ph. 2, CCP, which expressively imposes the acquittal of the defendant, should the evidence be insufficient or contradictory .

The trend in denying a true innovative value of the terms expressed in Art. 533 of the CCP could initially be found also in case-law. The first judgments of the Supreme Court after the entry into force of Law No. 46/2006 have acknowledged a mere descriptive nature of the legislative formula and maintained that the “reasonable doubt” on the guilt of the accused would already have entailed the acquittal pursuant to Art. 530, ph. 2, CCP . The Court of Cassation has also pointed out that the legislator - by introducing the principle according to which a Judge renders an adverse decision only if the accused is found to be «guilty of the alleged crime beyond any reasonable doubt» - did not intend to decree a different and stricter criterion to evaluate the evidence , insofar as Law No. 46/2006 has simply formalized a rule that was already absorbed by the case-law, and according to which a conviction is possible only if during the proceedings emerges the certitude of the defendant’s liability .

A different interpretation soon emerged within the complex debate on the real effects of the reform of Art. 533, ph. 1, CCP, aiming at representing the codification of the “beyond any reasonable doubt” principle if not as some sort of “Copernican revolution” in the trial assessment of the facts and of the criminal liability , at least as a regulatory corroboration - according to the perspective of the completion of the adversarial procedure and strengthening of the guarantees provided by a “fair trial” - of a specific epistemological statute.

Although admitting that the prove on the “reasonableness” of the doubt can rely on complicated judgments of value , the idea of reducing this essential characteristic to a mere issue of personality that expresses generically the outcome of a judgment balancing the blatancy of the inculpating evidence and the abstract admissibility of the doubt does not seem to be shareable. The logical characteristic of “reasonableness” provides the doubt with the tangible and objective practicality nature avoiding that the outcome of the trial rests upon discretionary appreciations verging on a mere personal choice .

Any nihilistic tendency to a skepticism portraying the “reasonableness” as an intrinsically indeterminate and fatally impossible to be determinate concept must be warden off, together with the approximate idea that it represents a datum perfectly intelligible through our most common intuition, as if it were a pure and simple feature of balance and moderation. In reality, in subiecta materia, “reasonableness” concept constitutes a rationality paradigm regarding a practical explanation, that is to say a logical pattern related to the issue of stating grounds as well as - and above all - to the intersubjective communication, control, and acceptability of these grounds during the proceedings. It is an argumentative rather than demonstrative (typical of the episteme) rationality that substantiates a justifying model aiming at making the reasons universal (rational acceptability) .

In truth, the codification of the “beyond any reasonable doubt” evidentiary and judgment rule neither represents a useless frill, nor even an “Americanism”, but it constitutes an opportune (or at least clarifying) additional intervention with the aim of filling the vast “black hole” left in the code of procedure of 1988 (that is to say the incomplete formulation of Art. 530, ph. 2, CCP), an intervention that determines ope legis a general criterion of discernment - objective (i.e. existing per se as it is not bound to the mere subjective perception) and preceptive (i.e. not left to the good conscience of each Judge) - to identify an insufficient or contradictory probatory outcome.

Therefore, it appears that it is not possible to endorse the eminent and evocative doctrinal theory that aims at reducing the significance of the coded formula to a purely connotative-didactic value, as if it were a simple invitation from the legislator to urge upon the Judge caution and severity in evaluating: a sort of standard of caution, an ethical principle with a benefic pedagogical effect, as a strong reference to the need for the conviction to be the result of a prudent and circumspect examination of evidence . It is easy to object that by simply shaping the “beyond any reasonable doubt” rule as a principle falling outside of the legal framework - on the basis of which the trier of fact can convict someone only if sure about the defendant’s guilt - the issue of having an objective standard to assess the evidence is moved to an essentially subjective dimension, in light of the fact that the caution addressing the Judge’s ethical behavior concerns his personal belief, and appears to refer to the individual and irrational intime conviction of the French, rather than a rational assessment of evidence .

The reference, in first instance, to the assessment of a criminal liability “beyond any reasonable doubt” certainly removes all juridical value in the criminal judgment from the purely skeptic doubt, that is that doubt lacking any specific motive referred to what we have reason to think in given circumstances .

Secondly, the BARD legal formula is needed to reiterate the essentially “probabilistic” nature of the guilty judgment, given that the evidentiary reasoning generates conclusions providing information that is not necessarily wholly included in the preambles. For these reasons, on the judgment of guilt it is never possible to confer complete certainty, but a more or less substantial probability degree . Naturally, such “probability” is not merely quantitative, but it is a logical relationship between available evidence and the allegations to be verified.

Nevertheless, there is a quid pluris in the legislative formula coded in 2006: the introduction in the Italian criminal trial system of the “beyond any reasonable doubt” judgment rule does not call for a static (quite obvious and politically correct) evidentiary standard with reference to the gnoseological judicial ascertainment of guilt . This rule codification, completing a multiannual legislative, academic and jurisprudential effort, aims at creating a legal method (but not a legalistic one) of juridical reasoning in the discriminating evaluation of proof and rational justification of the adopted decision.

When experiencing the reality of the Italian criminal trial system, one must inspect the substantial nature of the “beyond any reasonable doubt”, that is to say its objective projection and the operative schemes that can help the judicial implementation of this rule . This is the only way to bring out the mainly dynamic nature of the functional interaction between the evidentiary and judgment rule under discussion and the inner conviction of the Judge, considering, in prospect, the subsequent activity of logically and juridically supporting it in the grounds of the judgment .

Even before the codification of the “beyond any reasonable doubt” criterion, it is possible to observe how the most mindful Italian case-law never backed out from the intellectual effort to formalize the modus operandi of this rule. Nonetheless, this case-law has taken good care of avoiding getting stuck in abstract schemes or sterile algorithms, and never rested upon the illusion of magic or miraculous formulae. The attention on the effort to provide a concrete meaning to the “reasonable doubt” concept focused on the field of the scientific evidence, which has always brought about cognitive problems that tend to overcome the common experience, and that request more solid grounds for the guilty decision.

Many Supreme Court decisions (such as the “Franzese” case) did not limit themselves to apodictically stating that insufficient, contradictory or uncertain evidence - that is to say the disclosure of the “reasonable doubt” - entails the neutralization of the charges and the consequent acquittal, but rather tried to elucidate the evidential reasoning that must lead to the guilty verdict. After having differentiated the statistical probability (relevant to the «empiric verification of the frequency regarding the sequence of events») from the logical probability (that «by following the inductive advancement of the evidential reasoning to establish the degree of confirmation of the alleged hypothesis on a specific circumstance to be proven, it includes the additional verification, on the grounds of the whole available evidence, […] of the persuasive and rational credibility of the judicial ascertainment»), this decision has highlighted how, within criminal proceedings, the logical method must lead to a conclusion showing a “high degree of rational credibility”, hence to the “trial certainty”» so that «the interference of different developments is avoided» .

Recently, Judges of the Supreme Court have specified in some judgements that, pursuant to the new statement of Art. 533, ph. 1, CCP, it is mandatory to pass a conviction when the obtained evidence leaves out only the remote possibility that, even if expressible in abstract and imaginable as possible in rerum natura, does not find the slightest validation when compared to trial findings, thus standing outside the natural order of things and of the normal human rationality .

Certainly, these well-structured propositions cannot sum up the whole systemic operating process of the “beyond any reasonable doubt” criterion. In any case, even if still undeniably perfectible, they have the unquestionable merit of focusing on a distinctive connotation of this regulatory provision: the statement of criminal liability in terms of certainty does not exclude the presence of the most abstract and remote possibility or any verisimilitude whatsoever, but the serious possibility to advance any other reasonable solution.

Furthermore, it is even more important to note that such statements attest how the “beyond any reasonable doubt” criterion does not represent the subjective measure of the Judge’s belief, but rather the objective condition of confirming the allegation on the basis of the available evidence, taken as basis for the guilty decision.

Therefore, by restating Art. 533, ph. 1, CCP, the legislator did not mean to enter the “forbidden garden” of the free conviction of the Judge, but only to overcome the traditional dichotomy between the legal evidence system and the intime conviction, in favor of a criminal justice administration that conciliates the free appraisal of the evidence with the rational predictability of the judgment . Having coded the heuristic formula of the “beyond any reasonable doubt” means having adopted the argumentative vis of the doubt as a cognitive and communicable critical evaluation tool both of evidence and opposing allegations on the fact .

In this respect, the “reasonableness” begins to be “the measure of all things”, whereas the criminal judgment - permanently ceasing to constitute the solipsism of the judicial body - fully becomes a dialectic dispute between the parties of the trial before an independent Judge (in medio cognoscens). In short, the criminal trial becomes an actus trium personarum [a proceedings before three different actors], in which, by means of a rigorous process of a falsifying epistemology, the allegation undergoes multiple and systematic rebuttal so as to thoroughly sift the logical coherence and the compatibility with the evidence.

Through the rule of the “beyond any reasonable doubt”, as criterion for judicial assessment of evidence, the epistemological principle of the adversarial process permeates not only the evidential and reasoning procedure of the parties, but also the work of knowledge and rational explanation carried out by the Judge . In truth, only by untangling all knots of the dialectic discussion developed during the course of the proceedings, both on antagonistic reconstructions and evidence, it is possible to have proper control on the possible alternative statement of facts capable of leading to the exclusion of a “reasonable doubt” margin on the guilt of the accused.

Finally, with one last notation, it is interesting to observe that in Italy the “beyond any reasonable doubt” criterion permeates the main lines of the criminal procedural system and gives salient expression to the cognitive status of justice in criminalibus, which gravitates around the fundamental principles of orality of trial and of immediacy in the formation of evidence.

This emerges with particular reference to the overturning of the first-instance acquittal, especially with regard to the judicial evaluation of the declarative evidence . In fact, the BARD criterion requires generally that, in the absence of occurred elements, any pejorative review carried out on appeal must be supported by resolutive arguments, able to highlight objective inadequacies or insufficiencies of the acquittal decision . In other words, in case of overturning on appeal, the first-instance acquittal of the accused must be no longer sustainable, even in the sense of leaving residual reasonable doubts open on the assertion of guilt. This means that a different judicial evaluation of equivalent plausibility, with respect to the assessment of the first judge, is not enough to overturn an acquittal; on the contrary, it is necessary, on the level of the rational justification of conviction, a “superior persuasive force” , capable of bringing down any reasonable doubt.

However, in order to realize actually a “reinforced” motivation of the overturning that achieves and supports a decision of guilt “beyond a reasonable doubt”, it is not possible to do without orality and immediacy in the reassuming of the declarative evidence turned out to be decisive. Otherwise, the pars motiva of the judgement would be compromised by the logical aporia deriving from the fact that the overturning of acquittal, made on the basis of a mere paper valuation of the evidence available to the first judge, «contains in itself the implicit reasonable doubt determined by the adoption of conflicting decisions» . In such cases, in direct consideration of the canons of “fair trial” in criminal proceedings - contained in Art. 111 of the Italian Constitution, as well as in Art. 6 ECHR - the reasonable doubt about the accused’s guilt can be overcome only by using the “best” method for forming evidence. In this sense, in 2017 the Italian legislator (Law No. 103, June 23, 2017) - also for the primary purpose of incorporating in the normative provisions the indications emerged in the Strasbourg Court’s case-law - has established that the judge provides the renewal of the trial evidentiary hearing, in the event of an appeal by the Public Prosecutor against an acquittal for reasons regarding the assessment of the declarative evidence (Art. 603, ph. 3-bis, CCP) .

Therefore, even in this juridical dimension, the BARD formula results as a “very general criterion” of the criminal procedural system , which constitutes, through a specific ontological and operative connotation, the “eye” through which to pass whenever a decision has to be made .

In Italy, the BARD criterion pervades the fundamental structure of the criminal procedural system and gives significant expression to some of the principal guarantees in causis criminalibus: the presumption of innocence of the accused, the burden of evidence placed on the prosecution and the decision formula in dubio pro reo, as well as the obligation of rational justification of judgements.

Without meaning to build any abstruse heuristic paradigms, naively aiming at assimilating the quomodo of the trial knowledge to the methodological rigor of natural sciences, it is possible to state that the “beyond any reasonable doubt” criterion prevents the Judge from rendering a conviction every time that there is space left for incertitude that rests upon the inadequacy of the accusation (when the inculpating evidence does not cover all the elements constituting the criminal offence or, in any case, is invalidated by counterproofs of the same demonstrating attitude) or on the existence of an alternative hypothesis - corroborated by solid evidence - that was not neutralized on its explanatory significance.

It is not sufficient that the allegation is simply proven to be more probable, plausible, or preferable if compared to the defense position, just because it is more conform to the facts relevant to assert the guilt. The decision convicting the defendant is denied when the allegation simply prevails - regardless of its margin of advantage - in light of the fact that it must categorically impose itself on any other probable factual hypothesis reconstruction, as if it had some sort of uncontested logical supremacy on the antagonistic reconstructions regarding the circumstances sub iudice . In this manner, the burden of proof lying with the Public Prosecutor is added to the need to rebut the opposing explanations, even if not provided with sound evidence . On the other hand, the burden of proof lying with the defense must only highlight the existence of plausible alternatives to the one - even if proven - of the prosecutor, in order to raise a “reasonable doubt” that the facts could have occurred in a different way . Should this be the case, the rational existence of an exclusive and univocal certainty on the allegation would be therefore undermined .

To conclude, the Italian legislator, with the normative interpolation of 2006, intended to include unequivocally and solemnly in the criminal procedure code the BARD rule, arisen and developed in the heart of the Anglo-American legal experience. However, in Italy both legal literature and jurisprudence had to manage a complex route of normative implementation. They could not benefit sic et simpliciter from the precious and stratified heritage of common law experience, but had to deal with the particular juridical reality of a civil law system, in which specific emphasis is given to the procedural guarantee of the control over the evaluative, logical and argumentative process carried out by the judge and resulting from the decision’s motivation. In this regard, the legislative acceptance of the BARD criterion in the Italian adversary criminal trial - far from being reduced only to a more rigorous assessment of evidence - has resulted in a legal method of evidentiary reasoning, through which to discern between the antagonistic hypotheses of innocence and guilt. In particular, the modification to Art. 533, ph. 1, CCP represents the formal and genuine recognition of a specific legal method which elevates the dialectic strength of reasonable doubt as an instrument for evaluating evidence and assumptions about facts in the finalistic perspective of the judgment motivation.