Forensic Science International 146S (2004) S215–S217
www.elsevier.com/locate/forsciint
Strategies and investigations for the defending counsel
at the scene of the crime
Paolo Carnuccio1
Catanzaro ‘‘Magna Grecia’’ University, Viale Pio X8 n. 21, 88100 Catanzaro, Italy
Available online 12 October 2004
1. Access to the scene of the crime
Access to the scene of the crime is a typical part of the
defensive investigation. The provisions of the articles 391
sexies and 391 septies of the Code of Penal Law refer to this
activity and in particular, the second one refers to access to
private property or property that is not open to the public. The
defending counsel, the substitute PP, the private detectives and
the technical consultants all have a right to on the spot
investigations. They can establish the condition of the spot
and the things found there. They can proceed to make their
own description of the place and they can also make technical,
graphical, planimetric, photographic and audiovisual surveys
or notes.
It is possible to make written minutes of the presence of
people at the scene of the crime, recording the date and
place, the generalities of the person writing the report and all
the other people who intervene, with a description of the
place and things found there, which records the various
exams carried out, the results of which can be attached to the
report, and with the signatures of all those who participated.
In public places and properties that are open to the public,
the people mentioned above do not need to have any special
authorisation in order to gain access to the scene. In the case
of private properties or ones that are not open to the public,
the defending counsel must ask permission from those who
have the authority to give it, or in lack of these, from the
judge. In this case, the defending party himself must ask for
1 results become useless should the PP’s assumption prove to
Scholor of Penal Law and Administrative Criminal Law at
Catanzaro ‘‘Magna Grecia’’ University, Professor of Procedural
Penal Law at the Legal and Forensic Professional Post Graduate
Specialization School of Catanzaro ‘‘Magna Grecia’’ University.
E-mail address: carnucciopaolo@interfree.it.
0379-0738/$ – see front matter
doi:10.1016/j.forsciint.2004.09.066
authorisation, producing documentation in the case of a
refusal given to those who have the right to authorisation,
so that the judge can weigh up the case and decide whether
access to the scene is really necessary to make a complete
investigation for clues that could be in favour of the defend-
ing counsel’s client. The judge’s verdict will specify any
time limit on the access to the place in question; the
authorisation will not be given for access to living areas
and dependant buildings unless it is necessary to find traces
and material clues of the crime, signs or indication of the
commissioning of the crime—finger prints, blood stains,
articles belonging to the presumed culprit etc. In the case of
technical investigation that uses unrepeatable techniques (ex
art 233 comma 1-bis Code of Penal Law and 391 sexies Code
of Penal Law) on things or places, the state of which is liable
to modification, the defending counsel must immediately
alert the PP in order to exercise the faculty forseen by the art
360 Code of Penal Law for ‘‘unrepeatable technical inves-
tigations that are to be considered compatible’’. The defend-
ing counsel guarantees, in these cases, that the PP will be
able to participate in the investigation together with his
technician in order to be able to make observations and/or
defer the promotion of probatory accident. In this hypoth-
esis, mirroring what is forseen by the Public Prosecutor’s
legislator, the defending counsel must consider whether to
accept the alternative of accepting the deferral proposed by
the PP or whether he should continue his investigations on
the assumption that, should these be deferred, they would no
longer be gainfully carried out because of the risk that the
be wrong. It is advisable to avoid trial situations that
could damage the client’s position, for whom the best
solution is undoubtedly that the judge decides upon proba-
tory accident.
S216 P. Carnuccio / Forensic Science International 146S (2004) S215–S217
2. The defending counsel on the scene of the crime
and the legal and medical investigations
In certain circumstances it is best that the defending
counsel personally intervenes on the scene of the crime in
order to carry out the aforementioned investigative activities.
When a crime is committed, a soon as possible after receiv-
ing the news, the examining magistrate arrives on the scene
and decides what to inspect using scientific legal medical
techniques. Obviously, the defending counsel cannot be
present in this moment; he can only be made party to the
facts when he receives the mandate notifying him of an
illegal activity carried out and the need to make investiga-
tions about a well-defined subject. The defending counsel
must be vigilant over this since the decisions over, which
things to do in order to help his client cannot ignore the
unpredictable, which may arise when studying decisive
scientific evidence of extraneousness to the contested facts.
The place where the crime was committed is the first to be
studied. A study of the surroundings allows the investigator
to make useful observations about the personality of those
who live there, for example. It will be possible to make an
anthropo-psychological evaluation of the victim or the pre-
sumed culprit. A person’s home will often give indications
about the habits, character, profession and culture: tidiness
or untidiness; luxury or poverty; these are all psychological
indicators, which can be very useful in a defensive strategy.
The most interesting investigation for the defending
counsel is that carried out on the corpse. Having made
photos of the victim and the surroundings, the position
and clothing of the victim must be examined first. The
doctor will decide whether it is opportune to move the
corpse or undress it, partially or totally. The choice is not
without repercussions for the defending party. Should he
decide to remove the victim’s clothes (night clothes, sports
clothes, casual or elegant clothes in good state, tidy or
untidy, ripped, blood-stained or clean etc.) immediately
without sterilizing them adequately, there is a concrete risk
that the scientific evidence may be altered, which may or
may not be important to the final results of the investigation.
Thus, as a complete examination of the corpse can only
be carried out at the autopsy, it is advisable to leave any
investigation other than the ascertainment of the death and
the immediately recognisable features (position, location,
expression, rigidity and temperature) to a second moment
where it is possible to carry out every examination with
proper equipment.
The position and pose of the corpse are fundamental to
the final understanding of the criminal action. They serve to
orientate the defending counsel in his activities on behalf of
his client. In fact, the more specific the reconstruction of the
crime, the easier it will be for the defending counsel to
uncover the psychological element that influenced the agent
and describe the crime.
In terms of penal responsibility, for the criteria for
establishing the sentence as determined by the art 133 of
the Code of Penal Law, it is necessary to observe the grade of
intent or guilt, and in this sense an attentive defending
counsel will certainly consider the most favourable defen-
sive course to follow during the investigations recommend-
ing a sub-agent with a suitable psychological profile to the
judge. Particular care and precision will be necessary when
verifying problems attaining to possible changes in the state
of the corpse at the scene of the crime. The cadaver might
have been moved, transported for an unknown distance, have
had its position or pose changed. These are all interesting
elements for the defensive strategy because they can be
important in judging the suspect’s conduct (consider the
hypothesis of concealment of the corpse), and inherent in
situations where the guilt can be shared with other people
when it is possible that several people may have been present
during or immediately after the crime, and their conduct may
have influenced the evidence.
In the case of firearm crimes the defending counsel must
examine all the pertinent ballistic details: (a) the type of
weapon used; (b) the bullets or cartridges used; (c) the
position of the shooter; (d) the trajectory of the bullet and
(e) the entrance and exit holes in the corpse; the type and
grade of wounds inflicted. In short, it is impossible to work
out any trial studies where firearms are involved in the crime
without having resolved the ballistic problems, since to do so
would compromise the efforts made on behalf of the defence
because the ballistic details are intrinsic to the results of any
study. Comparative investigations or studies that could lead
to comparative investigations have a separate part in the
defending counsel’s activities. These studies involve taking
fingerprints, and examining bloodstains, residues from shots
and organic traces in general. It is possible to carry out these
investigations with a certain ultimate aim in view, or alter-
natively they can be made in order to use them in comparison
with other clues (already found or still to be found) so that a
complete reconstruction of the business can be made.
Setting aside the possible results of an investigation, if
the investigations do not refer to the relationship between
two perfectly homogeneous elements, the circumstance
according to which the observation is to be made by com-
parison and consequently the defending counsel’s attention
will increase, not only in the activity in question but also for
the formulation of the comparative data to be reported. The
problem is how to formulate or create the facts to be
compared the defending counsel must scrupulously certain
fundamental principles and make sure that others do so as
well, in order to avoid dangerous situations. During the
search for clues he must make sure certain things are done
depending on the object that is considered a clue: he must
check that the object is correctly sealed; that it is adequately
preserved; that it is handled properly; that the creation of
data is guaranteed and not dispersed in order that further
scientific analysis can be carried out; he must ensure the
contextuality of the comparative findings and he must make
sure that the final result can be documented and especially
that the comparative data can be identified.
 P. Carnuccio / Forensic Science International 146S (2004) S215–S217
Should the defence discover any error or weakness in
the search for clues, he should report it immediately to the
juridical authorities, making certain that the report is
properly worded in order to that the activities thus far
carried out can be nullified or that the results be considered
void.
The defending counsel, who has the advantage over the
examining magistrate of already knowing his client’s phy-
sical characteristics, may find it useful to stimulate a com-
parative investigation in order to prove his client’s complete
non-involvement in the facts. The defending counsel must
take care to oversee that the samples are adequately sec-
tioned, removed and preserved. If the bloodstained object is
small it can easily be transported. Otherwise it is necessary
to remove a part of the object with the stains taking pre-
cautions to preserve the sample; removing a piece of furni-
ture to be studied, or a floor tile or, using a glass support and
cloth reinforcement, the stained plaster should the sample be
on a wall and other similar methods for different stains.
The defending counsel can denounce any incorrect pre-
servation of samples containing blood. In the following
S217
cases he should vigorously denounce the error to the autho-
rities, when the preservation process: (a) leads to irreparable
damage to the clue; (b) does not allow a certain test to be
carried out; (c) leads to a state of degradation such that the
evidence cannot even be used for comparative relationship
investigations and (d) impedes the possibility of carrying out
further observations.
When organic traces are compared, it is worthwhile
remembering that DNA types, like fingerprints, are unique
to each individual, and can be full proof, or nearly full proof.
Thus, the defending counsel must be aware at all times what
tests are being carried out, and check them using all the rules
and scientific instruments in his possession.
A classic case is that in which the suspect’s DNA profile
is compared with that in the bloodstains on the victim’s
clothes, in order to verify the compatibility suggested by
other evidence at the scene of the crime. In this case, since
the test will be decisive, the defending counsel cannot skimp
in his efforts to verify each clue in order to satisfy his
defensive strategy since he will have to accept a minimal
margin of error.