Minor's Capacity to Testify: Cassation Court Ruling n. 32176/2025 Clarifies the Relevant Moment

In the delicate balance of criminal justice, testimony represents one of the fundamental pillars for ascertaining the truth. Particular attention is due to the position of a minor witness, whose vulnerability requires specific protocols and assessments. The Court of Cassation, with ruling n. 32176 of June 23, 2025 (filed on September 29, 2025), has provided a clarification of fundamental importance regarding the moment at which the capacity to testify of a subject who, being a minor at the time of the events, subsequently became an adult at the time of evidence taking, must be assessed. This ruling, which saw D. P.M. E. P. as the defendant and Dr. Aldo Aceto as the rapporteur, provides essential guidelines for legal practitioners, while ensuring the correct acquisition of evidence and the protection of the witness.

The Regulatory Framework and the Specificity of Minor Testimony

The testimony of minors has always been a subject of particular attention in our legal system, as evidenced by Articles 196 and 498, paragraph 4, of the Code of Criminal Procedure. These provisions, along with Article 192 of the C.P.P., emphasize the need for a cautious and protective approach. The capacity to testify is not merely a demographic issue, but a psychological and cognitive one: the minor must be able to understand the nature of the oath (if applicable), perceive facts, remember them, and report them reliably. For this reason, specific listening protocols are often used, aimed at minimizing trauma and maximizing the accuracy of statements. But what happens when time passes and the "minor" becomes an "adult" before testifying?

The Cassation Court's Maxim: "An" and "Quomodo" of the Evidence

In the context of testimonial examination, the assessment of the capacity to testify of a subject who was a minor at the time of the facts, but subsequently became an adult, concerning the "an" (whether) of the evidence, similarly to the choice concerning the use of protocols for their listening, affecting the "quomodo" (how) of its taking, must be carried out at the time when the testimony is given, without regard to the age of the declarant at the time of the committed offense.

This maxim crystallizes a fundamental principle: the evaluation of the capacity to testify, both regarding the "an" (i.e., whether the subject can testify or not) and the "quomodo" (i.e., in what manner they should be heard), must take place at the actual moment the testimony is given. It is not the witness's age at the time of the offense that determines their capacity or the methods of listening, but their condition at the time of the deposition. This means that if a subject was a minor when they witnessed a criminal act, but became an adult before being called to testify in court, their capacity to testify and the procedures for hearing them will be assessed based on their current adult age. Therefore, specific protocols for minors will not be automatically applied, unless other fragilities or vulnerabilities independent of chronological age emerge.

Practical Implications and Witness Protection

The practical repercussions of this ruling are significant. Firstly, it introduces greater clarity for judges and lawyers, establishing a uniform temporal criterion for assessment. Secondly, while overcoming the automatic application of minor protocols for those who have become adults, it does not at all exclude the need for a careful assessment of the person. Adulthood, in fact, is not in itself a guarantee of the absence of vulnerability. For example, traumas or psychological fragilities related to experiences lived in younger years may persist, which could still require sensitive and protected listening methods, although not strictly those provided for minors. In such cases, the judge must still take every precaution to ensure the witness's serenity and the reliability of their deposition, availing themselves, if necessary, of forensic experts and psychologists.

• **Assessment at the time of testimony:** Capacity and listening methods are based on the witness's current age.
• **Overcoming automatism:** Minor protocols are not applied ex officio if the witness is an adult.
• **Persistence of vulnerability:** Adulthood does not exclude the need for a sensitive approach in cases of past trauma.
• **Role of the Judge:** Adopt necessary precautions to protect the witness and ensure the genuineness of the evidence.

Conclusions

Ruling n. 32176 of 2025 by the Court of Cassation represents a firm point in the jurisprudence concerning the testimony of vulnerable subjects. It reiterates the importance of a contextual and dynamic assessment of testimonial capacity, anchoring it to the moment of the actual taking of evidence. This approach guarantees, on the one hand, the coherence of the procedural system and, on the other, the flexibility necessary to adapt to the changing conditions of the witness, ensuring that the search for truth always occurs with full respect for the person and their potential fragilities. A significant step forward for a criminal law that knows how to be rigorous but also profoundly humane.