The statements used in the court

(Fair warning- IANAL)

Why was Knox’s 5:45 am statement used in the court, when the surpreme court had ruled it inadmissable in the murder trial? Knox was also on trial for slander against Lumumba. Lumumba’s attorney in defending Lumumba questioned Knox on the statements during her testimony. 

From a translation of the testimony when Knox was on the stand, it appears the ruling to allow questioning based on the “5:45 am spontaneous declaration” was due to the slander charge only against Knox, with the explanation: “the crime of slander can occur within spontaneous declarations of the suspect,  article 350.7, and so they can be used in connection with this crime” :

“In the sentence emitted by the Court of Cassazione, first
section, sentence number 99-08, dated April 1, 2008, it is asserted that
the spontaneous declarations from 5:54 [sic] are inadmissible regarding
both the accused and the other subjects involved in the same crime, being
contrary to the defense guaranteed to a person who is already officially a
suspect. It must however be noted that the said inadmissibility concerns the
crime common to the various suspects and cannot be considered to concern also
the specific crime of slander, for which we will cite the decision of the
Supreme Court on this subject, section 6, number 10089, from February 2, 2005:
the crime of slander can occur within spontaneous declarations of the suspect,
article 350.7, and so they can be used in connection with this crime. For
this reason, within the specified limits, the objection is rejected. Go
ahead, avvocato”

Translation of testimony below from

http://www.perugiamurderfile.org/viewtopic.php?f=8&t=165

GCM=Giancarlo Massei=Judge=Presidente
AK=Amanda Knox=accused undergoing examination
GM=Giuliano Mignini=prosecutor=pubblico ministero
MC=Manuela Comodi=prosecutor=pubblico ministero
CP=Carlo Pacelli=Lumumba defense lawyer=avvocato
FM=Francesco Maresca=Kercher defense lawyer=avvocato
GB=Giulia Bongiorno=Sollecito defense lawyer=avvocato
LG=Luciano Ghirga=Knox defense lawyer=avvocato
CDV=Carlo dalla Vedova=Knox defense lawyer=avvocato

“CDV: The genericity of the question relative to the interrogation of November
6th must be specified. I recall that this document was declared unusable by
the Supreme Court. Decision of April 1, 2008. So whenever we refer to the
time period of the 5th and 6th of November, when you refer to transcripts from
November 6 in a plural form, it is absolutely necessary to give a time
reference for the interrogation being referred to. Because there is one
transcript which was declared inadmissible and the other admissible against
others but not against Amanda.

CP? Excuse me, Presidente, but this objection is really “peregrina” [bizarre].
The interrogation of November 6 at 1:45 and the interrogation of November 6
at 5:45 have both been acquired [included in the dossier] in the body of
evidence of the slander case, and thus they are perfectly admissible in
the aim of any contestation from this attorney [CP speaking of himself in the
3rd person]. Otherwise, we would be in a situation that lies outside any
logic of the legal code, so I will repeat and reformulate my question. On
November 6, 2007, at 1:45, you said that you went to the house in via della
Pergola with Patrick. Did you go?

AK: The declarations were taken against my will. And so, everything that
I said, was said in confusion and under pressure, and, because they were
suggested by the public minister.

CP: Excuse me, but at 1:45, the pubblico ministero was not there, there
was only the judicial police.

AK: Ha. They also were pressuring me.

CP: I understand, but were they telling you to say that, too, or did you say it
of your own free will.

AK: They were suggesting paths of thought. They were suggesting the path
of thought. They suggested the journey. So the first thing I said, “Okay,
Patrick”. And then they said “Okay, where did you meet him? Did you meet
him at your house? Did you meet him near your house?” “Euh, near my house,
I don’t know.” Then my memories got mixed up. From other days,
I remembered having met Patrick, at Piazza Grimana, so I said “Okay,
Piazza Grimana.” It wasn’t as if I said “Oh, this is how it went.”

CP: Listen, Meredith, before she was killed, did she have sex?

CDV: Excuse me, I would like to speak.

GCM: Yes, avvocato?

CP: Is there an objection to this, too?

GCM: Excuse me, avvocato. Please, please. Avvocato, yes?

CDV: I was asking to speak about the use of the transcripts of November 6.
“Peregrina” [bizarre] — now that she answered, you see there is no more
artifice or impediment, we can talk. One thing is, that the declarations–
the sommarie informazioni testimoniali of 1:45 given without the pubblico
ministero, and the spontaneous declarations of 5:45 with the pubblico
ministero, should be correctly considered as constitutive elements and
body of evidence as for being objective elements in the crime of slander.
Another thing is their admissibility for the purpose of ascertaining the
truth. Because, the second [5:45 declarations] were declared to be totally
inadmissible erga omnes [for any purpose] since they were violating the
right to defense of a person who was substantially a suspect. This is written
by the first section of the Supreme Court. The first [1:45 declarations]
are not admissible contra se [against oneself], against Amanda, since
those declarations were being released by the same person who was to become
a suspect for that crime. So, in what concerns the acquisition of these
documents for the trial dossier, as by our knowledge, we know their content,
they can be there. But on the issue of their admissibility for any future
question, the second ones, the ones where the PM was present, are absolutely
not admissible here. The first ones are not admissible against Amanda. We
would like to state this.

(…)

CDV: Presidente, I renew the objection to the use of the transcript of
5:45, it has been declared inadmissible, and so it is surprising that the
defense lawyer for the civil plaintiff insists on making references to this
document which, as we have already said at various times, in relation to
the Supreme Court ruling, was declared inadmissible, so cannot be used or even
mentioned. I don’t see how my colleague can continue insisting and
reiterating his questions on facts which are contained in this document.
I find this really quite an excess.

(…)

GCM: On this question we have had a number of remarks and objections. We have
a highlighted objection, perhaps the parties are invited to discuss this
specific aspect of the admissibility of this document. About the
admissibility of this document that was acquired by the Court, but is
not admissible for questioning the accused. We still have the objection that the
defense has argued, recalling the ruling from the Supreme Court, although
still in the initial phase [first question time], whereas the defense of the
accused, sorry I mean the defense of the civil plaintiff insists, inversely,
on considering that this document is admissible also for “contestazioni”
[a remark to the accused about a contradiction among statements].

CP?: I prefer, Mr. Presidente, to briefly read the argument myself.
Cassazione, section VI, 6-6 94.

GCM: You quoted it already.

CP: Yes, but if I could just, to be clear, so we could avoid these useless
objections. “The nullity as a consequence to violation to the right of
defense of a questioning in which a defendant, or a suspect, would move
slander charges against a third person, prevents us from taking account
of the transcript by itself, but does not nullify the validity and
effectiveness as a document, for a part for which the latter has no value as
a questioning but rather the value of a denouncement of crime, if the
slander case is in regard to the third person, an innocent. The nullity of
the document as an interrogation in fact cannot cancel the historical fact of
a notitia criminis falsely told, which has an autonomous conceptual autonomy
by itself, being ius receptum [established by the jurisprudence] that the
right of the defendant to reject any accusation from himself, or even the
right to lie [ius defendenti] does not extend itself up to justify false
accusation in charge to persons innocent of that crime. By Supreme Court
6-6-94. This is a slander charge, Presidente, therefore I have the right to
raise it.

(…)

FM: Presidente, may I?

GCM: Please. Let’s hear the pubblico ministero first, and the other parties
in regard to this aspect, and then hopefully the Court will retire to the
counsel room in order to deliberate, and will then give indications, or try
to give indications, for the continuation of the examination. Go ahead,
pubblico ministero.

MC: Presidente, without reading it or citing it literally, because it would
be too long, and I see that the Court already knows it, the defense too,
anyway I would like to invite everyone to read the ruling of the
United Sections of the Supreme Court number 1150 of 2009, so very recent,
in which the first part is about declarations of collaborators with justice,
which doesn’t concern us, while in the second part is established the
absolute admissibility for the purpose of applying remand in custody,
therefore it would go beyond the sentence [or evaluation] of the Supreme
Court on what concerns this specific case. Hense admissibility
for the purpose of remand in custody and thus the admissibility for
“contestazione” of spontaneous declarations. It is very long and very clear,
it recalls the previous jurisprudence as well, hence I believe that the
exceptions and the objections that are made to every question are unfounded
and I would even say this is instrumental for the continuity of Amanda Knox’s
declarations.

FM: We are repeating things that have already been said. We had this identical
discussion in the first audiences, about the acquisition of the documents,
which were actually already in the dossier of the Court, transmitted as
the transcripts of the two interrogations. And at that time there was a
discussion relative to the admissibility of these documents, with very
numerous references to the sentence of the Supreme Court, by
avvocato dalla Vedova. The sentence of the Supreme Court on the topic of
cautional arrest [remand in custody], for all positions of all the accused, was
acquired by the Court and entered by the various parties, so it is repeated,
there is a page — I don’t have in front of me right now — which the Supreme
Court devotes to the spontaneous declarations made by Amanda Knox to the
pubblico ministero, making a clear difference between the admissibility and the
relevance of these declarations in regard to other people and in regard to
the accused herself, obviously confirming the admissibility of these
declarations in regard to her own position, as the Supreme Court teaches us
in the development of this topic. So to this end, as today Amanda Knox is
being examined and not any of the other accused, these declarations can be
used in all tranquillity, both the first and the second, to be recalled and
contested in questioning her. Furthermore, and I conclude, but this will also
come up in my questions after the end of the examination by the defense,
the topic of these declarations was also the topic of the handwritten
memorandum that was acquired by the Court, and this same manuscript can be
recalled, in my opinion, insofar as it makes reference to these
declarations, for the same questions that we can ask the accused today.

(…)

CDV? I thought I was going to be able to intervene on this point. I only
want to recall that apart from [background discussion]–

GCM: Excuse me, please. Yes, avvocato? Apart from?

CDV: Apart from the recent decision cited by the pubblico ministero, I am
making this a question of formal inadmissibility of a document. So,
to this defense, if a reference is made– [background talking]

GCM: Excuse me.

CDV: –if a reference is made to the facts of that night, there is no
arguing [nulla quaestio]. We are in agreement, and our client is ready to
answer. But I do not agree with specific references to the interrogation of
5:45 which obviously contains reported facts, because I insist that once there
is a declaration of inadmissibility, it is a formal question.

[Interruptions.]

CDV: Could you be courteous enough to let me finish?

GCM: Please go ahead, avvocato.

CDV: So, I insist that there is no problem with analyzing the facts of that
night, but it was a formal question of the repeated references to a document
which has been declared inadmissible, and I will abstain from reading the part
of the sentence of the Supreme Court concerning this, which is absolutely
clear, it seems to me that this is not ritually correct.

GCM: The Court will retire to take counsel.

GCM: On the objection that was advanced by the defense of Amanda Knox,
concerning the inadmissibility for purposes of examination of herself
by the civil plaintiff Lumumba Patrick, of the spontaneous declarations of
Amanda Knox on November 6, 2007 at 5:54 [sic], the other parties having been
heard on this point. In the sentence emitted by the Court of Cassazione, first
section, sentence number 99-08, dated April 1, 2008, it is asserted that
the spontaneous declarations from 5:54 [sic] are inadmissible regarding
both the accused and the other subjects involved in the same crime, being
contrary to the defense guaranteed to a person who is already officially a
suspect. It must however be noted that the said inadmissibility concerns the
crime common to the various suspects and cannot be considered to concern also
the specific crime of slander, for which we will cite the decision of the
Supreme Court on this subject, section 6, number 10089, from February 2, 2005:
the crime of slander can occur within spontaneous declarations of the suspect,
article 350.7, and so they can be used in connection with this crime. For
this reason, within the specified limits, the objection is rejected. Go
ahead, avvocato.

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