“It may be thought that this is just a rather shabby way of gaining the sympathy of the court. Or at least of the jury. It would not be absurd to think this, because we lawyers often get up to such tricks. And anyway, everyone is free to think of it as he pleases. Not least because criminal cases are not debated and decided on the basis of the charm of the defence counsel or the prosecutor. Thank goodness. Cases are decided – if I may state the obvious – on the basis of positive proofs. If they are present, the verdict is guilty. If they are lacking – or even if they are merely insufficient or contradictory – the verdict is not guilty.
“We therefore have to ask ourselves on the basis of what criteria we can affirm that the evidence in a case is sufficient, enabling us to convict the defendant, or else insufficient or contradictory, in which event we must acquit him.
“In our consideration of these matters we may confidently start from the manner in which the public prosecutor proposed them.
“The public prosecutor – and I made an exact note of his statement – said: ‘There is a high degree of verisimilitude in the hypothesis that the defendant arrived in Bari from Naples, went on to Monopoli, having already worked out his criminal design in detail, or in the grip of a raptus, or brainstorm, reached Capitolo, probably switched off his mobile so as not to be disturbed, seized the child’ etc. From this ‘high degree of verisimilitude’ the public prosecutor deduces an important, if not indeed decisive, item of evidence – in order to maintain the defendant’s guilt and to ask you to sentence him to prison for life.
“Therefore, to verify how well founded and reliable is the line of argument adopted by the prosecution, we have to ascertain the meaning of the word ‘verisimilitude’.”
I paused, picked up the sheet on which I had earlier made a note in the library, and read: “Verisimilitude, we read in the most authoritative dictionary, is ‘the appearance of being true or real… the likeness or resemblance to truth, reality or fact’.
“And under the heading ‘truth’ we read this definition: ‘conformity to fact; agreement with reality’. And under the heading ‘appearance’: ‘apparent form or look, especially as distinguished from reality’. We also find an explanation of the phrase ‘It looks real’ as being used of something artificial that imitates reality to perfection. What looks real is therefore something artificial, something which imitates reality.
“Do you remember the definition of ‘verisimilitude’? The word used by the public prosecutor? It refers to something that looks true or real, that imitates reality but does not correspond to it. Something, in short, to be distinguished from reality. By using this term the prosecutor implicitly and unconsciously admits that he cannot use the words ‘true’ or ‘real’. You see clearly how in the very words of the speech for the prosecution there lurk its irredeemable shortcomings.”
At this point, as I expected, Cervellati lost his cool and protested to the judge. It was unacceptable that the defence should be permitted to pour scorn on the function of the public prosecutor with cheap sophistical arguments. The judge did not appreciate the interruption and reminded the public prosecutor that the defence could say what it liked, short of personal abuse. Cervellati attempted to add something, but the judge told him, brusquely this time, that he could make his comments on my speech – if he so wished – when the time came for his response. That was that, he said, and he would tolerate no more interruptions. He turned to me and invited me to proceed. I thanked him, carefully avoided making any reference to the interruption, and went ahead.
“What we have said briefly about the meaning of these key words – truth, reality, the appearance of reality – therefore offers us an interesting approach to interpreting the arguments used by the public prosecutor and the psychological premises underlying those arguments.
“A trial, however, is not based on a psychological interpretation of what the public prosecutor says. Neither, in order to verify whether his reasoning is right or wrong, is it based on an analysis of what the public prosecutor has said. Because the public prosecutor might have followed a wrong line of reasoning and arrived nonetheless at correct conclusions. That is, it might be right to pronounce a sentence of guilty. In spite of the public prosecutor’s mistaken reasoning and on the basis of a different, more correct line of argument.”
Cervellati got to his feet, dumped his robe on his chair and ostentatiously left the room. I showed no sign of noticing.
“It is therefore not enough to single out the defects in the prosecution’s argument. We have to ascertain whether the evidence assembled does or does not enable us to formulate a judgement corresponding to the truth. We do not wish to shirk this task. But before we tackle it I wish to repeat one concept.
“It is a concept which I would like you to bear in mind throughout these proceedings and, above all, when you are in camera. To bring in a verdict of guilty it is not enough to say that a certain version of the facts, a certain hypothetical reconstruction of the facts, is likely, or even very probable. You must be able to say that this reconstruction is the truth. If you can do that, then it is right for you to send the defendant to prison. For life.
“The hypothesis put forward by the prosecution in this trial runs as follows: on 5 August 1999 Abdou Thiam unlawfully restrained Francesco Rubino, a minor, subsequently causing his death by suffocation.
“Can we assert, on the basis of the evidence provided, that this hypothesis is true? That is, can we assert that this is a correct description of how events happened in fact and truth, and not just a mere conjecture as to how they might have occurred?”
I paused as if I had lost my thread, glanced down and passed the first two fingers of my right hand across my brow. After a moment or two I looked up towards the bench, still without speaking. There was dead silence. Everyone was looking at me, expectant.
“Let us examine this evidence together. And in particular let us examine the statements of the witness Renna, proprietor of the Bar Maracaibo. To avoid any misunderstandings, I would like to say at once that I agree with the public prosecutor in saying that this witness is telling the truth. Or to be more precise, this witness is not telling lies.”
Another short pause to give them time to wonder what I was aiming at.
“Because a lie is an assertion made in the awareness that it is contrary to the truth, and I am convinced that Signor Renna did not make assertions in the awareness that they were contrary to the truth. In saying that he saw Abdou Thiam pass his bar on just that afternoon, at just that time, Signor Renna thinks he is telling the truth. And in fact he would have no reason to bring false accusations against the defendant.
“To be sure, it emerged from his examination that he has, to put it mildly, no particular liking for the non-European citizens who gravitate towards the area of Capitolo and the vicinity of his bar.
“I want to read you a brief passage from that cross-examination. We are speaking of the non-European citizens whom Signor Renna calls ‘niggers’. Counsel for the defence asks whether these persons interfere with Renna’s custom.
“The witness replies, ‘They interfere, they interfere, and how!’
“ ‘Forgive me for asking, but if they are a nuisance, why don’t you call the municipal police, or the carabinieri?’
“ ‘Why don’t I call them? I call them all right, but d’you think they come?’
“In short, Signor Renna – he tells us so himself – does not like the presence of the non-European citizens at Capitolo and in the vicinity of his bar. He would like the strong arm of the law to intervene and move them on, but this doesn’t happen. He is somewhat incensed.
“All this, be it clear, does not mean that he has deliberately told us untruths about Signor Abdou Thiam.
“But setting aside his liking for – or dislike of – ‘niggers’, and his unsatisfied demand for the strong arm of the law to act in some way against these ‘niggers’, has Signor Renna told us the objective truth? Can we affirm beyond any reasonable do
ubt that the version provided by this witness corresponds to the truth of the actual facts with which we are concerned?
“One element of doubt may be inferred from the little experiment with the photographs, which you will remember. Renna failed to recognize the defendant in a photograph, in fact in two photographs, which you have in the records and can verify for yourselves as to their likeness to the defendant. The very man who is here in court and, above all, the person whom the witness declares he knows well and whom he saw pass his bar that August afternoon.
“Does this mean that Renna invented the lot, that he is telling lies? Certainly not. The fact that he doesn’t like ‘niggers’ and that he sensationally failed the photographic test does not mean that he knowingly lied.
“When he says he remembers that that afternoon Abdou Thiam passed his bar, without his usual bag, walking quickly in a southerly direction, the witness Renna is telling the truth.
“In the sense that he does in fact remember this sequence of events and fixes it on that afternoon. To be more precise, he tells us what he believes to be the truth. The really interesting thing – and this introduces us to the fascinating subject of how the memory functions – is that Renna believes that that is the truth, because he remembers those events, even if they never happened. Not in the terms of his account.”
Pause. I needed these notions to settle in the minds of the court, and especially of the jury. I made a pretence of rummaging in my notes until about ten seconds had passed. Just time for them to wonder what was coming next.
“Now I want to tell you about a scientific experiment into the functioning of the memory and the mechanism by which memories are produced. A team of American psychologists, at Harvard University I believe, set out to test the reliability of childhood memories. A number of children of nine or ten years old were told a story by their elder brothers or sisters, who were instructed in what to say. The story was that at the age of four or five they had escaped an attempted kidnapping. They were told that they had been in a supermarket with their mother, and at a moment when her attention was distracted a stranger had seized them by the hand and made for the exit. Their mother had realized what was happening, had started shouting and had put the would-be kidnapper to flight.
“The episode had never in fact occurred, but a few months after being told the story the children not only thought they remembered it – and really in a certain sense they did remember it – but in telling the story they even added details that were not there in the original version.
“Were these children lying? That is, were they saying untrue things in the awareness of doing so? Certainly not.
“Did these children give an account of things that had really happened? Certainly not.
“It is an acknowledged fact – and one of the most important objects of study in modern forensic psychology – that both children and adults make mistakes about the source of their memories and are convinced that they remember contexts, facts and details which have in fact been suggested by others. Deliberately, as in the case of the experiment I have recounted to you. Or involuntarily, as in many situations in everyday life and also, at times, during criminal investigations.
“On the basis of these considerations we can give an answer to the question put by the public prosecutor in the course of his speech, regarding the reliability of the witness Renna. The public prosecutor asked himself, and above all he asked you: what reason did Renna have for lying and therefore falsely accusing Abdou Thiam?
“We can answer that question with perfect confidence: no reason at all. And in fact Renna did not lie. Between lying – that is, knowingly uttering falsehoods – and telling the truth – which is giving an account of the facts as they really and truly happened – there exists a third possibility. A possibility which the public prosecutor did not take into consideration, but which you must take into very close consideration. That of a witness who gives a certain version of the facts in the erroneous conviction that it is true.
“We are here concerned with what might be defined as involuntary false witness.”
They seemed interested. Even the judge and the military-looking juryman. The pair who – I was convinced of it – had already decided to find Abdou guilty.
“There are many ways of building up involuntary false witness. Some are deliberate, as in the case of the experiment with children that I told you about. Others are themselves involuntary and often prompted by the best intentions. As in this case.
“Let us together try to reconstruct what happened in the inquiry which led to the indictment of Abdou Thiam, and therefore to this trial. A little boy disappears and two days later his dead body is found. It is a deeply disturbing event, and those whose task it is to put the investigations in hand – the carabinieri, the public prosecutor – feel it is their urgent, their pressing duty to discover the culprits. There is justifiable eagerness to satisfy to the demand for justice provoked by such a horrible crime. By questioning the child’s relatives, and other persons who knew him well, the carabinieri discover this apparent friendship existing between the boy and this African pedlar. It is something strange, unusual, that arouses suspicions. And also the feeling that perhaps they are on the right track. Perhaps it is possible to satisfy that demand for justice and to placate that anguish. The investigation is no longer groping in the dark; it now has a possible suspect and a theoretical solution. This redoubles the efforts made to find confirmation for this theoretical solution. This is how things stand when the witness Renna is heard for the first time, by the carabinieri. The investigators are understandably excited by the possibility of solving the case, and they realize that the statements of this witness could well constitute a decisive step. It is at this stage that we see the construction of the involuntary false witness.
“Attention please, I beg of you. I am very far from saying that there was any deliberate manipulation of the inquiries. And even less am I speaking of the grotesque hypothesis of plots on the part of the investigators to the detriment of the defendant. The question is, at one and the same time, both simpler and more complex, and to explain what I wish to say I will borrow a famous phrase of Albert Einstein’s. The phrase, if I remember rightly, goes more or less like this: ‘It is the theory that determines what we observe.’
“What does this mean? It means that if we have a theory – a theory we like, that we are satisfied with, that seems to us good – we tend to examine the facts in the light of that theory. Rather than objectively observing all the available data, we look only for confirmations of that theory. Our very perception is strongly influenced, is indeed determined, by the theory we have settled on. As Einstein said in speaking of science, it is indeed the theory that determines what we succeed in observing. In other words, we see, we hear, we perceive what conforms to our theory and simply pass over all the rest. There is a Chinese saying that expresses the same concept in a different way. The Chinese say: ‘Two-thirds of what we see is behind our eyes.’
“We have all had experience of how our very perceptions are determined by what, for the most varied reasons, is in our heads or, as the Chinese would put it, behind our eyes.
“Have you never bought a new car and suddenly, driving along, you notice dozens of the same model on the roads? Where were they before?
“Perception filters, the psychologists call them.
“Paraphrasing Einstein, who, I imagine, must be turning in his grave at my intrusion, we can state that it is the investigatory hypothesis that determines what the investigators see. But not only that. It determines what they look for. It determines the questions they ask. It determines the manner in which they draw up their reports. And all this does not in the least imply bad faith.
“Allow me to repeat: all these things I have mentioned can produce errors in the investigations – and it is the business of the trial to correct such errors – but they do not in the least imply bad faith.
“If anything, in a case such as this, we are faced with an e
xcess of good faith.
“Let us therefore return to what we were saying a few minutes ago. The investigators want to solve this dreadful crime. They want to do it for the best reasons and with the best intentions. They want to do it for the love of justice. They want to do it quickly, so that the perpetrator of such a horrible deed remains at liberty – and in a position to strike again – for as short a time as possible. In this state of mind they find a track to follow and single out a possible suspect. Not fantasies, mind you, or hypotheses used as pretexts. The track was a good one and the suspicions with regard to Abdou Thiam were plausible. On the basis of this good track, the investigators set off in pursuit of the man they considered to be the probable culprit.
“From that moment on the carabinieri and the public prosecutor have a theory which – as we learn from Einstein – will determine what they see, how they will act with witnesses, what they will ask them, how they will draw up the records and even what they will record. In perfect good faith and eagerness to see justice done.
“You will now understand the reason for those questions put by the defence to the carabinieri sergeant-major regarding the manner in which the report was drawn up. Because if I make a complete record – complete, that is, with tape recording, stenotyping and so on – there is no difficulty in understanding what happened during that examination. Everything is on record – questions, answers, pauses, the lot – and we have only to read the transcription or listen to the tape recording. If the examiner has involuntarily influenced the witness, we can verify the fact simply by reading. Then each of us can come to his own conclusions.
“If the report is a mere summary, such a verification is impossible. And if the summarized report is that of the very first contact between the investigators and the witness, the risk of involuntary manipulation of the witness’s statements and memories is very high indeed.
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