A criminal sentence can also be challenged when the conviction seems to be based on evidence that should not have entered the trial. The point, however, is not merely stating that the act was improperly gathered or appears unfair: it is necessary to understand whether the law expressly prohibited that acquisition and whether the judge used that evidence to make a decision.
In this guide, I explain what unusable evidence means, why it does not coincide with every procedural error, and how the choice between appeal and petition to the supreme court changes. We will also examine which elements of the sentence and documents make the ground concrete, which deadlines require attention, and why the exclusion of a piece of evidence does not automatically lead to acquittal.
When Evidence Cannot Be Used
Unusability concerns a prohibition provided by law. Article 191 of the code of criminal procedure establishes that evidence acquired in violation of legal prohibitions cannot be used. Therefore, this is not a simple dispute regarding the persuasive value of a statement, a document, or computer data: the objection must identify a rule that prohibited the acquisition or use of the evidence under those conditions. The text of the provision can be consulted in Article 191 of the code of criminal procedure.
Unusable evidence remains outside the judge's reasoning. If the prohibition operates, the judge cannot base the decision on that element. Article 191 also provides that unusability can be raised ex officio at every stage and degree of the proceedings. This does not eliminate the usefulness of a well-constructed ground of appeal: precisely indicating the contested act, the violated prohibition, and the passage of the reasoning that uses it makes the issue comprehensible to the appellate judge.
It is not enough to call a piece of evidence “unlawful”. It is necessary to distinguish unusability from criticism regarding the content of the evidence. A contradictory testimony, an unconvincing reconstruction, or an uncertain identification can be challenged because they were poorly evaluated; they do not become unusable for this reason. Unusability, instead, concerns the very possibility of using an element, not the weight the judge attributes to it after admitting it.
Unusability, Nullity, and Erroneous Evaluation: Why the Distinction Matters
Each defect has its own rules and consequences. In criminal proceedings, nullity concerns an act performed without complying with certain formal or defensive safeguards; it may be subject to specific deadlines and objection procedures. Unusability, however, depends on the violation of an evidentiary prohibition. Finally, the erroneous evaluation of evidence concerns the judge's reasoning: the act is usable, but the sentence attributes a meaning to it that is inconsistent with its content or with the rest of the trial material.
The classification of the defect changes the remedy. Presenting as unusability a defect that the law treats as nullity may render the ground off-target; limiting oneself to criticizing the credibility of evidence that could not be used may instead leave the more radical problem in the shadows. For this reason, the sentence must not be read in isolation: it is necessary to connect its reasoning to the act from which the contested information derives and to the rule that governed its acquisition, documentation, or utilization.
The abbreviated trial may affect the objections that can be raised. If the defendant requested the abbreviated trial during the preliminary hearing, Article 438, paragraph 6-bis, of the code provides for the cure of non-absolute nullities and the non-raisability of unusabilities, with the exception of those deriving from the violation of an evidentiary prohibition. The form of the trial, therefore, does not automatically erase every question regarding the evidence, but requires verifying which defect is being deduced and which rule governs it. The reference is in Article 438 of the code of criminal procedure.
When Unusability Can Affect the Conviction
The sentence must show how it used the contested evidence. It is not sufficient that the unusable act is present in the file or was mentioned during the proceedings. To challenge a conviction, it is decisive to understand whether the judge based the finding of responsibility on it, whether they used it to confirm other elements, or whether they constructed reasoning that could stand even without it.
Other evidence can change the result. If, once the contested element is eliminated, autonomous and suitable evidence remains to support the conviction, the exclusion of the unusable evidence does not alone determine an acquittal outcome. If, instead, that evidence is the sole accusation element or plays an essential function in the reasoning, the objection can affect the decision much more sharply. This difference must be illustrated with reference to the counts and individual passages of the sentence.
Evidence connected to a flawed act is not automatically unusable. The system does not indiscriminately transform every consequence of an initial irregularity into evidence to be expelled. It is necessary to verify whether a provision establishes unusability for that specific act and, when subsequent elements are contested, what the concrete relationship is between the original act and the evidence employed by the judge. Avoiding this simplification is particularly important for interceptions, statements, seizures, and contents extracted from electronic devices.
Appeal and Petition to the Supreme Court: Which Challenge to Consider
The appeal allows contesting the conviction sentence on the merits and in law. Generally speaking, the defendant may appeal against conviction sentences, but there are hypotheses of unappealability and special rules linked to the procedure or the type of penalty applied. Article 593 of the code excludes, among other things, the appeal for certain convictions with only a fine penalty or with the substitute penalty of community service. Before choosing the remedy, it is therefore necessary to precisely identify the ruling received. The regulatory framework is in Article 593 of the code of criminal procedure.
In the appeal, the ground must indicate the requested effect. The challenge can ask to exclude the evidence from the usable material and to reform the sentence in the consequences deriving therefrom: for example, by re-evaluating the evidentiary framework without that act. However, it is not enough to state generically that the conviction is based on prohibited evidence. The procedural rule, the concrete act, the point of the sentence, and the final request must be connected.
The petition to the supreme court concerns errors of law and defects permitted by the code. Article 606, paragraph 1, letter c), includes among the grounds the non-observance of procedural rules established under penalty of unusability. The petition can therefore be relevant if the judge used evidence that the law prohibited using, but it does not serve to obtain a new general reading of all facts as if it were a second appeal. The text of the permitted grounds is in Article 606 of the code of criminal procedure.
Unusable evidence may also be challenged before the Court of Cassation. Article 191 allows the defect to be raised ex officio at any stage and level, so the bar applying to other violations not raised on appeal does not automatically apply. The limits of review on points of law and the admissibility requirements still matter: the Court of Cassation does not conduct new factual investigations. The appeal should therefore identify the act, the violated prohibition and the effect of that evidence on the conviction.
Specificity of Grounds and Deadlines Not to Be Handled Casually
The challenge must be precise from the very beginning. The written brief must identify the contested ruling, the contested counts or points, the requests, and the grounds with the reasons of law and factual elements supporting them. For unusable evidence, it is useful for the ground to clearly distinguish the acquisition act, the invoked prohibition, the part of the reasoning that makes use of it, and the consequence demanded regarding the decision.
Ordinary deadlines depend on the filing of the reasoning. Article 585 of the code connects the deadline for challenging to the methods and filing deadline of the sentence provided by Article 544: the deadline can be fifteen, thirty, or forty-five days. It is not prudent to calculate it solely from the date of the hearing or the date an informal copy of the sentence is received. It is necessary to verify the operative part, any indication of the filing deadline, the actual filing date, and the communications provided in the specific case. The discipline is reported in the Ministry of Justice circular on the rules of challenges.
A well-founded objection can become unusable if proposed late. The ex officio raising of unusability provided by Article 191 does not authorize ignoring the deadlines for challenging a sentence. When the conviction is already pronounced, the remedy must be proposed within the applicable deadline and in the required form. Timeliness does not replace the quality of the ground, but it is the condition that allows the appellate judge to examine it.
What Can Happen After the Acceptance of the Objection
The exclusion of the evidence requires new reasoning on the sentence. On appeal, the judge can reform the decision after excluding the unusable element from their examination. The outcome depends on what remains: a conviction may not hold, may require a different classification or a different penalty, or may find support in independent evidence. Therefore, there is no automatic consequence valid for every proceeding.
In the supreme court, annulment does not always close the trial. If the Court notes the procedural violation, it can annul the decision within the limits of the accepted ground, and the proceeding can continue before the judge competent for referral when further evaluations are required. The Supreme Court has clarified that, in a referral proceeding subsequent to annulment for unusability, the judge may have investigative powers and may renew declarative evidence according to the applicable rules: the unusability of the previous act does not always equate to the absolute impossibility of admitting valid evidence. The principle is illustrated in Supreme Court ruling no. 36766 of 2023.
The request must follow the real problem. If the defect concerns only a marginal act, asking for complete annulment without explaining the nexus with the conviction makes the objection less persuasive. If, instead, the prohibited evidence supports the decisive passage of the accusation, it is necessary to clearly show why the other statements in the sentence are not enough to fill that gap.
Frequently Asked Questions
Is it enough for evidence to have been gathered improperly to appeal?
No. Improper behavior or irregularity does not automatically equate to unusability. You must identify the rule that prohibited the acquisition or use of the evidence and distinguish this defect from nullity or simple erroneous evaluation. The challenge becomes more solid if it also shows in which passage the sentence employed the contested act.
Can I raise unusability after a conviction sentence?
Yes, but you must use the correct remedy and deadline. Unusability can also be raised ex officio at every stage and degree, but the sentence must be challenged within the established deadlines. If the appeal is permitted, it is important to formulate the specific ground already in that brief, without generically postponing it to a potential petition to the supreme court.
If the evidence is excluded, do I automatically obtain an acquittal?
No, not automatically. The judge must re-evaluate the decision without the unusable evidence. If autonomous and sufficient elements remain, the conviction can find a different foundation; if, instead, the excluded act was indispensable to prove the fact or responsibility, the effect on the sentence can be much more relevant.
Can I petition the supreme court to say the judge believed the wrong person?
It is not enough to contest a different reading of the facts. The petition to the supreme court concerns the grounds established by Article 606 of the code, including the violation of procedural rules established under penalty of unusability. Criticism regarding the credibility of a source must therefore be connected to an error of law or reasoning permitted by the code, rather than presented as a new complete evaluation of the merits.
What acts are needed to understand if evidence is unusable?
At least the sentence with reasoning and the contested act are needed. The acquisition report, the measures of the judge or the public prosecutor connected to that act, and the pages of the file recalled by the sentence may also be relevant. The point is not to gather documents indiscriminately, but to reconstruct the connection between the violated rule, the evidence, and the conviction.
Before Deciding Whether to Appeal
If you must evaluate a challenge, keep the operative part, the sentence with the reasoning, the acts containing the contested evidence, and any measures that authorized or governed its acquisition. The deadline must not be estimated from memory. You can contact me to frame the practicable remedy, the applicable deadline, and the actual nexus between the discussed evidence and the conviction decision.