Theories of proof: dialogue with Franco Cordero*

Contribution published in the Journal disCrimen and herein contextually republished.
The contribution is subject to the editorial and evaluation criteria of the aforementioned Journal.

Abstract. In constant dialogue with the dazzling thinking of Franco Cordero, the paper focuses on the main aspects of the evidentiary process in the criminal trial: the separation between fact and law, the concepts of declarative evidence and critical-circumstantial evidence, the rules of judgment to be follow for the decision on uncertain facts, the phenomenon, often misunderstood, of ‘derivated’ invalidity. The progressive decline of the principle of orality-immediacy offers the starting point for an analysis of the relationship between law and jurisprudence, between current law and living law: the fundamental principle of the judge’s subjection to the law appears today in serious crisis due to the dysfunctions of the legislative power and for the proliferation of creative interpretations in the case-law.

SUMMARY: 1. The sharp thinking of Franco Cordero. – 2. The separation between fact and law. – 3. Declarative evidence and critical-circumstantial evidence. – 4. Burden of proof and rules of judgment. – 5. Rules of judgment and standard of proof. – 6. Misunderstandings regarding derivative invalidity. – 7. The immediacy between law and jurisprudence.

* Presentation given, in memory of Franco Cordero, at the XXXIV Conference of the association of scholars of the criminal trial on «Immediatezza nel processo penale», November 27-28, 2020.

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