The open catalogue of “atypical evidences” in Civil Trial.

The scholars and the courts have recently addressed the issue of the admissibility, and consequent evidentiary effects, of the so-called “atypical evidences”. Indeed, the civil trial system, unlike the criminal one (1), lacks a rule that allows parties to provide evidences not established by law.  

The scholars (2) agree to accept atypical evidences as long as these evidences are obtained respecting the adversarial principle and the procedural preclusions of civil trials. 

Case law (3) admits atypical evidences in civil trial for the following reasons:

• ​for the principle of free convincement of the judge;
• in the Code of Civil Procedure there is no rule indicating the number of the evidences;
• there is an objective extensibility of the concept of documentary evidence (through which atypical evidences would enter in the civil trial);
• the right to evidence must be guaranteed and implemented as an expression of the right of defense under Art. 24 of the Constitution and as a constitutive element of due process under Art. 111 of the Constitution. 

Therefore, any limitation on the admissibility of atypical evidences would make it more difficult for the judge to establish the facts, the so-called “material truth”, so that, with the exemption of the prohibitions provided by law (i.e. the inability to testify), the only filter for the entry of atypical evidence in the civil trial should be the relevance criterion.

Moreover, the Supreme Court (4) has considered the evidentiary effects of atypical evidence equivalent to those of simple presumptions or arguments of evidence, as long as they are suitable to provide sufficient elements to decide and they are not contradicted by the critical comparison with the other results of the trial (activity reserved to   and not censurable in the court of legitimacy).

Recently, the lower court case law has expanded the catalogue of atypical evidences suitable to support the judge's conviction, considering as such the technical consultancy exceeding the limits of the mandate (as long as it is not substantially extraneous to the object of the investigation for which it was ordered), as well as the technical office consultancy made in other judgments between the same or other parties (5).

The same catalogue includes: (i) “private deeds” from parties who are extraneous to the dispute (they constitute atypical evidences usable by the judge to decide,  along with the other proofs  acquired in the trial (6); (ii) results from acts of preliminary investigations made in criminal proceedings and, (iii) statements recorded by the investigative police bodies during witnesses interrogations (7). In particular, the information obtained during the preliminary investigation phase, acquired in the cross-examination of the parties, can be freely assessed in civil proceedings pursuant to art. 116 of the Code of civil procedure, since, for this purpose, it is not necessary for the declarants to have sworn an oath (8).

One of the most used atypical evidence by civil case law is the plea bargain sentence, despite its ontological difference from the conviction judgement. The plea bargain judgment contributes to build the evidentiary framework on which it is based the action for damages brought in civil trial against the offender convicted in criminal proceedings (9).

Moreover, the subsequent kinds of evidences are also considered atypical: (i) scientific evidences; (ii) evidences found on social networks; (iii) cellphone and WhatsApp messages; and (iv) telephone records (10).

The admissibility of atypical evidence has led to an evolution in the system of civil evidence. In particular, it has extended the investigative powers of the judge (narrowing the differences between civil and criminal proceedings) and it has alleviated the burden of proof of the party who wants to enforce his right in court on the basis of the principle “onus probandi incubit ei qui dicit” provided by Art. 2697 of the Italian Civil Code.

Published by: Avv. Olga Aldinio 

​ph: Designed by Pixabay

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​(1) Under art. 189 of the Code of criminal procedure.

(2) L. P. Comoglio, Le prove civili, Milan, 2017, 41.

(3) Court of Florence, n. 2429 of July 3, 2017, in DeJure.

(4) Court of Cassation, n. 12577 of June 4, 2014 and Court of Reggio Emilia, n. 229 of February 6, 2020 in DeJure.

(5) Court of Cassation, n. 25162 of November 10, 2020.

(6) Court of Cassation, n. 21544 of October 7, 2020 and Court of Cassation, United Sections, n. 15169 of June 23, 2010 in DeJure.

(7) Court of Ravenna, n. 312 of April 27, 2020, in DeJure.

(8) Court of Cassation, n. 18025 of July 4, 2019.

(9) Court of Parma, n. 234 of October 11, 2017, in DeJure.

(10) Court of Cassation, n. 2329 of November 13, 2015 and Court of Cassation, n. 16229 of July 31, 2015.