Interestingly, Chieffi also wrote this:
"Established case law has developed solid evaluative parameters concerning circumstantial cases which are absolutely uniform, and which
require the trial judge to perform a twofold operation: first, he or she must evaluate the circumstantial piece of evidence individually, to establish whether or not the required precision is present and to determine its probative value, which at most is in terms of mere possibility; then, it is necessary to enter into an overall examination of the pieces of evidence, to ascertain whether the ambiguities inevitably associated with each one (if demonstrative uncertainties were not present, one would be dealing with actual proof), can be overcome “in a unified vision, so as to permit the attribution of the criminal deed to the accused, even in the absence of direct proof of guilt, on the basis of a collection of facts which fit together without gaps or leaps in logic, and which lead necessarily to that outcome as a strictly consequential result.” (Sec. I, 6-9-2010, no. 30448, Un. Sec. 2-4-1992, no. 6682.)"
Where these people seem to have got themselves into a pickle is by getting their evaluations muddled and making them worse by doing what is now prohibited in Italian law:
Cass. Section 4, Ruling no. 48320 of 11-12-2009 (submitted 12-17-2009) Rv. 245879: “…In sum, the rule of beyond a reasonable doubt has definitively put in crisis that jurisprudential theory [orientamento] according to which,
in the presence of more than one hypothesis reconstructing the facts, the judge was permitted to adopt one which led to conviction solely because he deemed it more probable than the others. That will no longer be permitted, because, to arrive at conviction, the judge must not only deem improbable any differing reconstruction of the facts which leads to the acquittal of the defendant, but must furthermore hold that the doubt about [i.e. arising from] this alternative hypothesis is unreasonable (that is, it must be an implausible hypothesis or at least devoid of any confirmation whatsoever).” (Cited by Hellmann)
Thus, Cass. Section 1, Ruling no. 17921 of 03-03-2010 (submitted 05-11-2010) Rv. 247449: “The judicial rule encapsulated in the formula ‘beyond all reasonable doubt’ requires that conviction be declared on the condition that the evidentiary datum acquired leave [i.e. permit] only remote eventualities, perhaps capable of being abstractly formulated and proposed as possibilities in rerum natura [Latin: “in the nature of things”], but whose realization in the concrete circumstances at hand is devoid of any minimal confirmation in the trial record, putting itself outside of the natural order of things and of normal human rationality.” (Cited by Hellmann)
Hellmann concludes:
"The condition required by.....law (C.P.P Article 533 effected by Article 5, Law no. 46 - Feb 20, 2006) to arrive at a verdict of guilty does not, therefore, allow one to formulate a belief in terms of probability: that is, to issue a guilty verdict, it is not sufficient for the probability of the prosecution hypothesis to be greater than that of the defense hypothesis, even when the former is significantly larger [notevolmente più numerose]; but [rather]
it is necessary that every explanation other than the prosecution hypothesis not be plausible at all, according to a criterion of reasonability. In any other case, acquittal of the defendant is required."
There appears to be an unyielding tension here since "to permit the attribution of the criminal deed to the accused", as Chieffi surmises, even if it is possible to do this, is not sufficient to allow a trial court to arrive at a guilty verdict according to Art 533. Chieffi pays no attention to this.
http://translate.google.co.uk/trans...ii/capo-ii/sezione-ii/art533.html&prev=search
