In the complex and delicate landscape of criminal proceedings, evidence management plays a central role in ascertaining the truth. Testimony, in particular, is often a fundamental pillar. But what happens if a regularly admitted witness is not summoned for the hearing? This issue, seemingly procedural, has significant practical implications and directly affects the rights of the parties.

To clarify a frequently debated point, the Court of Cassation intervenes with Judgment No. 26185, filed on July 17, 2025. This ruling, presided over by Dr. G. De Amicis and drafted by Dr. A. Capozzi, aligns with an interpretative trend that values the principle of a fair trial, annulling a previous decision by the Court of Appeal of Messina with referral. Let's analyze the key principles expressed by the Supreme Court together.

The Context of Testimonal Evidence in Criminal Proceedings

The Italian Code of Criminal Procedure attaches great importance to testimonial evidence, regulating its admission and taking of evidence with precise rules, particularly in Articles 190 and 468 of the Code of Criminal Procedure. These provisions aim to ensure that evidence is pertinent and relevant, but also to prevent abuses or unjustified delays.

Traditionally, practice and some case law had sometimes adopted a more rigid approach: the failure to summon a witness was interpreted as a tacit waiver of the evidence or, worse, as negligence leading to automatic forfeiture. This approach, while aimed at streamlining proceedings, risked sacrificing the right to evidence, which is fundamental for the defense and for establishing the facts.

The Cassation's Decision: No Automatic Forfeiture

The Cassation's judgment No. 26185/2025, concerning the case of the defendant F. P. M. P., addresses precisely this issue, contrasting with some divergent previous rulings and consolidating a more protective orientation. The Supreme Court establishes a fundamental principle that deserves careful consideration:

The failure to summon a witness for the hearing does not result in the automatic forfeiture by the requesting party of the evidence, but allows the judge to assess whether, due to the superfluity of the testimony, the applicant's conduct implying an implicit waiver of the evidence, or unjustified delays in the decision-making process, the order admitting the testimony should be revoked. In its reasoning, the Court observed that the judge is not permitted to apply forfeitures not provided for, as a consequence of the failure to summon witnesses or the failure to document related procedural steps.

This principle is of crucial importance. The Cassation clarifies that the judge cannot apply forfeitures not expressly provided for by law. The failure to summon a witness is not, in itself, an act that automatically leads to the loss of the right to take that evidence. Rather, it triggers a discretionary assessment power by the judge, who must weigh various factors.

Criteria for the Judge's Assessment

The Court identifies specific prerequisites that the judge must consider before revoking the admission of testimony. These criteria are:

• Superfluity of the testimony: If the evidence is objectively useless for the decision, because the facts have already been extensively proven or are irrelevant.
• Conclusive conduct of the applicant: Not a simple oversight, but conduct from which the intention to waive the evidence can be unequivocally inferred.
• Unjustified delay in proceedings: If the failure to summon is a symptom of dilatory and unjustified conduct, aimed at delaying the proceedings without a valid reason.

It is crucial to emphasize that the burden of proving the existence of these prerequisites falls on the judge who intends to revoke the evidence. The ruling of the Cassation No. 26185/2025 reinforces the principle that the right to evidence cannot be curtailed by excessive formalism, but must be balanced with the need for speed and efficient administration of justice.

Conclusions

Judgment No. 26185/2025 of the Court of Cassation represents a firm point in the case law concerning testimonial evidence in criminal proceedings. It reiterates a fundamental guarantee principle: the mere formal omission of summoning a witness cannot translate into an automatic forfeiture of the right to evidence. The judge is called upon to exercise a careful and reasoned assessment power, based on specific criteria, balancing the need for expediency with the indispensable requirements of guarantees and the search for procedural truth.

This ruling serves as a reminder to all legal professionals to consider every aspect of the proceedings with due attention, balancing the need for speed with the need for guarantees. For the parties, it means greater protection against automatic forfeitures, but at the same time, it requires maintaining a high level of attention to the management of their evidentiary strategies, avoiding conduct that could be interpreted as an implicit or dilatory waiver.