Involuntary Witness

by Gianrico Carofiglio

  “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 excess 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.

  “Would you like a little example of how this can happen?

  “I am the investigator and I have before me someone who might be an important witness, perhaps a decisive one. I have strong suspicions of a certain subject, Abdou Thiam.

  “I ask the witness: Do you know Abdou Thiam? The name means nothing to me, perhaps you could show me a photo. Here’s a photo, do you know him? Yes, yes. He’s one of those niggers who often hang about outside my bar. They’re such a nuisance. Did you see him pass your bar on the day the little boy disappeared?

  “The witness pauses, thinking back. The investigators feel they are nearing a solution.

  “Think hard. The afternoon of the child’s disappearance. It’s a week ago.

  “It seems to me I did. Yes, he must have passed by. Seems to me it was certainly him.

  “At this point the sergeant-major dictates this for the records, because he wants to get it down in black and white before the witness changes his mind. Which happens all too often, alas. He dictates it to the lance-corporal at the computer. He dictates it in his bureaucratic jargon, not in the language used by the witness.”

  From my documents I selected the copy of Renna’s first statement and read from it.

  “In the report concerned we find expressions such as ‘in the management of the aforesaid commercial premises I am assisted by ...’ and so on. Obviously these are not the words of the witness Renna. Obviously we do not know what questions were addressed to Renna. We do not know because we are given only the answers. What were the questions put to the witness? Were they questions which influenced him? Were they leading questions, that is, questions so put as to suggest or prompt the expected answer? Were they questions which, quite involuntarily, created a memory?

  “There is no need for bad faith. It is enough to have a theory to confirm and our brain does the rest on its own, perceiving, working out, setting down in the records in such a way as to adapt the facts to fit the theory. Creating, or shall I say assembling, a false memory.

  “I say ‘false’ not because Renna invented anything or the carabinieri with criminal intent suggested a false story for him to tell. It is simply that in the course of the first interrogation Renna’s memories were reprogrammed in the light of the investigatory theory adopted, for which no objective verification was sought, but only confirmation. Those memories were reprogrammed, and how this happened in concrete fact we shall never know. Because the interrogation of this witness was not taped, only summarized in writing. In the manner which we have seen.

  “Would you like to know how far it is possible to influence the reply of a witness, or even modify his memory, simply by putting the question in a different way? Let me tell you of another experiment, this time carried out in Italy. Three groups of psychology students – not children, not uninformed persons, but students of psychology who knew they were being submitted to a scientific test – these students, I say, were shown a film sequence. In this sequence a woman was seen leaving a supermarket with a trolley. A young man approached the woman from behind, seized a handbag lying on top of the trolley and made off with it. The three groups were asked to give an account of what they had seen, but in answer to different questions. The first group was asked ‘Did the thief barge into the woman?’ The second group was asked ‘In what way did the aggressor push the woman?’ The students of the third group were simply asked to tell what they had seen. Needless to say, in the film there had been no push and no barging.

  “I think you will already have guessed the result of the experiment. Among the students of the third group – those who had simply been asked to give an account of the facts – only 10 per cent or just over spoke of a bump or any kind of physical contact between the aggressor and the woman. Of the students of the first group only 20 per cent spoke of a shove. While in the second group – to whom the most strongly suggestive question had been put – almost 70 per cent o
f the answers spoke of the non-existent contact. As in the case of the children, moreover, all those who spoke of it embroidered their accounts with details about the manner, the violence and the direction of this non-existent shove.

  “Need I say more? Do we have to waste more words in explaining how far the manner of conducting an interrogation can influence not only the answers but the very reconstruction of the memories of the person being interrogated? I think not.

  “We have now understood how vital it is to know which questions – and in what order, at what speed, in what tone of voice – have been put to a witness in his most important deposition, which is his first.

  “In this case this vital information is denied us, because in the carabinieri report we only read: ‘Witness replied.’

  “Replied to what question? What questions?”

  I raised my voice slightly. It was not my practice, but the jury were beginning to tire, and just as I was approaching the crucial point. I simply had to keep them alert.

  “We have said that if we do not know what the question was, we cannot say if the reply is genuine, or has been influenced or even manipulated. We will never be able to say because of that examination, that first examination of the witness Renna, all we have is a brief summary. We can only make conjectures. But in making them there is one fact we must not overlook. A fact that occurred before our eyes, during a hearing, in this trial. And that fact is the cross-examination of Renna. In the course of which we learned a series of very important things on the basis of which to assess the reliability of this witness. Which does not mean to assess whether the witness is lying or is telling his subjective truth. It means to verify how far his account corresponds with the objective course of events.

  “I will summarize these points. Signor Renna does not like non-European citizens and wishes the police would do something about them. Signor Renna does not know Abdou Thiam very well if – having two photographs of him in his hand and being in the same courtroom – he fails to recognize him. Signor Renna, finally and consequently, doesn’t have much of a memory for faces and does not find it easy to distinguish between one non-European citizen and another. From his point of view ‘they are all niggers’, to use the very words he used himself in replying to a question from the defence.”

  I was about to launch one of the decisive offensives, so I paused once more and gave the court at least twenty seconds. They had to wonder why I had stopped speaking and give me all the attention they could, after so many hours in the courtroom. When I started again, I pitched my voice higher. It had to be clear that we had reached the climax.

  “And on the basis of the statements of this witness, these statements from a dubious source – dubious on account of what we have said concerning the first interrogation by the carabinieri – the public prosecutor is asking you to inflict a sentence of imprisonment for life.

  “Bear in mind that to inflict not life imprisonment but even a single day in prison, you must not apply the criteria of verisimilitude, you must not apply the criteria of probability. Even supposing that in this case and with reference to the content of Renna’s deposition we are entitled to speak of verisimilitude or probability. You must apply the criteria of certainty. Absolute certainty!

  “We may speak of certainty in the reconstruction of an occurrence when every other alternative hypothesis is implausible and must therefore be rejected. Is that the case here? Is it implausible to think, for example, that Renna saw someone else that afternoon, not Abdou Thiam, in view of the fact that for him ‘niggers’ are all alike? Is it implausible to think that this witness was in some way mistaken? This witness who – mind you – failed miserably before your eyes to recognize the photographs. Could he not be mistaken? Can you with untroubled mind entrust your entire decision, and the whole life of a man, to the declarations of a witness whose fallibility has been revealed before your very eyes?”

  A pause. Seven, eight seconds.

  “And please take note: even if against all the evidence you still choose to maintain that Renna’s account is reliable, this would not amount to proof of the defendant’s guilt.

  “Because the other evidence against him isn’t worth the paper it’s written on.”

  And I went on to examine the statements of the two Senegalese, the results of the searches and all the rest of the evidence.

  I spoke of the mobile-phone records. Even if we agreed to speak in terms of the famous “verisimilitude”, I said, the prosecution’s reconstruction didn’t hold water. In fact it was almost grotesque. The prosecution held that the defendant had returned from Naples in the grip of a raptus, and had gone to Capitolo with the insane intention of kidnapping, violating and killing little Francesco. In that case he was mad. Because only madness could account for such preposterous behaviour. In which case, why had he not been subjected to any psychiatric examination? If to explain his behaviour it was necessary to fall back on mental illness, then this illness should have been ascertained. Otherwise that hypothesis remained simply an attempt to influence the court.

  I raised all these points fairly briefly. The jurors were tired, and I was convinced that when the moment came to decide they would primarily discuss Renna’s evidence.

  So I began to wind up. To end at the point from which one started gives the idea of completeness and lends strength to an argument. So I believe.

  “Verisimilitude or veracity, ladies and gentlemen. Probability or certainty. The choice ought not to be difficult. But instead it is. Because if on the one hand there is the perception – which I am sure we all share – that this trial has produced no answer, on the other hand there is the feeling of dismay at the idea that a horrible crime can remain unpunished, without a known culprit. It is an intolerable idea, and one that brings with it a very grave risk.”

  At that moment Cervellati re-entered the courtroom. He sat down and propped his head on his right hand, using the hand as a kind of barrier. Between him and me. His gaze was ostentatiously directed at a point in the courtroom high up on the left. Where nothing was.

  It was the position closest to turning his back on me that was physically possible with the tables and chairs arranged in parallel rows.

  I thought he was a turd and carried on.

  “The risk is that we may try to rid ourselves of this anguish by finding not the culprit but a culprit. Anyone at all. Someone who has suffered the mischance of getting ensnared in the proceedings.

  “Without – having – done – a – thing. Let me repeat that: without – having – done – a – thing.

  “Some may not share the categorical tone of my statement. Very well. Everyone is entitled to doubts. I am the defending counsel and for many reasons I am convinced of the innocence of my client. You have the right not to share this certainty. You have a right to your doubts. You have a right to think that Abdou Thiam could be guilty, despite what his counsel says.

  “He could be guilty. Despite the absurdity of the reconstruction put forward by the prosecution, you have the right to think that the defendant could be guilty.

  “He could be. In the conditional.

  “Verdicts of guilty, however, are not written – cannot be written – in the conditional mood. They are written in the indicative, they affirm certainties. Certainties!

  “Can you make affirmations of certainty? Can you say it is certain that the witness Renna was not mistaken? Can you say that at the end of this trial you are left with no reasonable doubt?

  “If you can say all this, then convict Abdou Thiam.”

  I had raised my voice and I became aware that this time I was not play-acting.

  “Sentence him to life imprisonment and nothing less. If you can say that there is not a single doubt, that you are absolutely certain, then it is your duty to sentence this man to prison for ever. You must have the courage to do it. The great courage.”

  For an indefinable time everything hung in the air. Until I heard my voice once more. Low now, and with a crack in it.


  “If, however, you do not have this certainty, then you require even more courage.

  “In order not to suppress your doubts in the name of summary justice, and therefore to acquit, you will need enormous courage. I am confident that you will have it.

  “Thank you for hearing me out.”

  I sat down, scarcely able to believe that I had really finished. From behind me on the public benches came a murmur of voices. I sat with lips compressed and head slightly bowed, staring dumbly to my left at the grain of the wood on my desk.

  I heard the judge speaking and his voice seemed to come from far away. He asked the prosecution and the civil party if they had any responses. They said no.

  Then he asked Abdou if he wished to make a concluding statement, before the court retired in camera. As was his right by law. The murmur died and there were a few seconds of silence. Then came Abdou’s voice speaking into a microphone inserted between the bars of the cage. It was quiet but firm.

  “I want to say one thing. I want to thank my lawyer because he has believed I am innocent. I want to tell him he did right, because it is true.”

  The president gave an imperceptible nod. “The court will retire,” he said.

  He got to his feet, and almost at once the others did likewise.