In the Forensic Engineering, the Engineer figure (as both Court-Appointed Engineer and PartyAppointed Expert) is appointed to assume the role of “scientific” figure, which is necessary in order to solve of particular and complex technical problems. In this paper, we intend to develop and to out-line a particular aspect of the procedure: the typical path in documental practice through the comparison with the legislation, focusing on documents production and validation, also paying attention on digital formats allowed by the Code. The innovative Italian Contest will be analyzed for his current change process. The Italian Laws, according to the innovative telematics civil procedure (the so-called PCT Process Civil Telematics), permits to deposit a limited number of document formats; this represents a real limit to understanding the facts. Besides, this documental limit is not present in penal procedure. In this paper how to integrate new formats will be discussed by means of a real case example. In the complex legal-technical world in which we have to operate, extremely specialized figures coexist with generally different knowledge substrate (Socio-Humanistic Sciences for Lawyers and Court, PhysicalMathematical Sciences for Engineers and Technical Experts). So different methodologies and languages, i.e., different Cultures, have to interface; this could be relevant and meaningful if a Cultural Heritage structure is considered in the Forensic Process. A proposal for digital integration is therefore necessary, as auxiliary and innovative supporting effort, in order to develop a clearer and more efficient communication standard. The recent Process Reform (the so-called Cartabia Reform) tends to an innovative goal: to mix new technological know-how; so, actions, events, moving images, sounds, numerical results have to be correctly presented and understood, above all if an existing structure, probably having a Cultural Heritage value, is under consideration. This paper focuses on the burden of proof and introduces an overview of key legal concepts, the system of governance and the general law-making process.
The paper aims to be the first in order to underline the importance of the new techniques for representing Built Heritage in the case of Forensic Engineering approach: in particular, various temporal phases concerning Built Heritage survey have to be considered.
We will not mention the various techniques of Cultural Heritage representation but we propose a practical research approach rarely present in the literature, focusing on the “work file” as an object of evidence produced to be used in the legal field.
The first case is the finite element modelling of failure mechanism in the abutment of a small collapsed bridge; the second case is the drone photogrammetry survey of an ancient small town involved in the L’Aquila 2009 Earthquake.
Both cases are actual representative approaches, both cases can be usefulness in order to open a discussion regarding new formats of Legal evidence.
Knowledge is therefore not the only purpose to ask for the right space within the regulations and the integration of new formats aimed at producing legal evidence.
Knowledge is correctly to understand any past information at disposal.
Obviously, in the background and as unsolvable matter for the moment, the theme of the effective possibility of understanding the different levels of Knowledge and Culture remains: the Legal and the Engineering one.
The paper is organized as follows: a first part of regulatory contextualization, briefly describing the current legal-administrative innovations and the modus operandi of the electronic submission of documentary procedures.
A second part offers an overview of the Authors' proposals for innovation, concretizing them in two different case studies, one of which regarding Forensic Structural Engineering of a penal nature.
A third part explains the importance and delicacy of integrating these proposals into the context, touching aspects of communication forms as well as engineering and legal ones.
Finally, the conclusions report the Authors' personal considerations and the scientificoperational proposal.
It is well known, [
It should be emphasized, however, that the most significant power to ask questions, set up defenses and above all to present evidence is together with the rights almost mainly of the parties in the case, since it is good to remember that in civil the judge plays a more passive role than in criminal litigation.
The burden of proof is the principle on which civil liability is based.
In Civil Legislation, the evidence to be presented to the Court is headed by the Parties in terms of collection and storage, as according to the relevant principle of the burden of proof.
However, it is important to underline that the Court has considerable investigative powers of its own motion to meet the needs of the case; in particular, it has a general power to order expert opinions, to request information from public authorities and to request clarification from witnesses.
Italian criminal law is primarily a contradictory system.
The most significant rights and powers are attributed to the Process Parties, the Prosecutor on the one hand and a Defense Lawyer on the other.
Parties are responsible for providing evidence of the guilt or innocence of an accused.
However, it is frequent in forensic engineering cases, to reach a decision; the judge can present further evidence at the trial.
The Parties are responsible for gathering and filing evidence with the Court.
The Court may request a more in-depth technical examination by the Parties on a specific issue or suggest a new investigation.
The first regulatory act that gave the real impetus to the Telematics Process is Article 4 of the
Legislative Decree 29 December 2009, No. 193 (actually Law February 22, 2010, No. 24 entitled
“Urgent interventions regarding the functionality of the Judicial System”). It started a lot of
activities regarding telematics process improvement, [
This provision attributes to the Ministry of Justice, in conjunction with the Ministry for Public Administration and Innovation, the regulatory power to identify new technical rules for the information adoption and communication technologies in civil and penal processes.
Based on the aforementioned Article 4 of the Legislative Decree 29 December 2009, No. 193, the Ministry Decree No. 44/2011 was enacted: it governs the basis of the Telematics Process and it is supplemented by Ministry Decree No. 209/2012 and by Ministry Decree No. 48/2013.
Finally, both Legislative Decree 90/2014 and Legislative Decree 132/2014 completed the regulation and definitively set starting dates for the Telematics Civil Process.
In this manner, actual Code governs both every process degree and its executive procedures; this framework is the above mentioned Italian contest and it is the subject-matter of this paper.
With the introduction of the Civil Telematics Process (PTC Italian acronym), the methods for drafting telematics measures have also changed, at least starting from 2014/06/30.
With the advent of the Civil Telematics Process, the submission of all types of documents has
to take place almost exclusively and necessarily by telematics manner: this procedure is
extremely rigid and the authenticated users, only, can use their login credentials to access the
services portal of the Ministry of Justice, [
In particular, the user access is forbidden at the end of the procedure too. In this manner, data collection and database formation is very rigid.
However, the Article 44 of the Legislative Decree No. 90/2014 refers, for judgments other than the admonitory one, considering an act occurring during the course of the proceedings (the socalled internal document), prescribes to respect the format of electronic documents shown in Fig. 1, with regard to both the mandatory and facultative electronic submission.
The internal documents submission must therefore take place exclusively by electronic transmission, using the services portal of the Ministry of Justice.
For this regulation, the official technical consultancy documents, which are part of ordinary litigation, fall into this category of internal documents too.
From the formats specified in the regulation, it is clear that it is impossible to deposit files other than text and images, since the technical specifications do not include video and audio extensions: in practice, a digitization has been imagined but in the context of an approach “typewriter” or as a part of a typical “amanuensis art” altogether.
The relevant issue is to permit both a document general kind submission and electronic size control.
One of the solutions used is to compress the content, audio or video files, in one of the formats allowed by the Technical Specifications of PCT procedure, i.e. the extensions .rar, .zip, .arj.
Surprisingly it should be emphasized that the same Article 13 of the Technical Specifications, in allowing the use of compressed files, provides that within these, only the files indicated in Paragraph 1 can be considered: so files with audio and video extensions have to be avoided!!!!!.
The second technically possible solution consists in attaching the audio or video file to the .pdf document by means of a specific link. In this manner, the unauthorized files can be used through the .pdf “box”, in which they are contained.
It should be emphasized that this trick presents a certain difficulty, since the recipient must always have compatible software (e.g., Adobe Flash Player) in order to open the .pdf file and access the content.
Although it may appear paradoxical, in an epoch invaded by computerization it is unfortunately normal that the Judge and the other Parties are unable to access the multimedia content.
It could be a very troublesome misunderstanding at the debate moment; the Engineer could be persuaded to have made himself clear and then he could experience a communicative failure: the Court did not realize the sense of his expertise merely for a consultation problem.
For this reason, a Court of Rome with 2015/01/24 sentence decided that DGSIA (acronym of General Department of Automatic Information Systems - Ministry of Justice), is deprived of power to identify number and characteristics of deeds that may be deposited.
Therefore, submission of deeds and measures not expressly contemplated in the authorizing decree must be considered admissible according to the general principle contained in Article 121 of Code of Civil Procedure that states: “… for which the acts of the process, for which the law does not require specific forms, can be performed in the most suitable form, to achieve their purpose …”.
It could be appeared that the appropriate methodology to guarantee the acquisition and knowledge of the proposed audio and video investigative means remains the deposit in the registry through media such as CDs, DVDs and USB memories.
However, this is strictly forbidden by the PCT procedure.
This is, in Authors opinion, an evident discrepancy among Civil Process and among Penal Process.
The sense of provisions included in the Cartabia Reform aim to achieve the digital transition
of the penal process, through innovations in terms of preparation, submission, notification and
communication of documents, [
In addition it introduces, what's more some innovations in the field of audio-visual recordings too.
Due to remote participation increase in some proceedings or hearings, due to pandemic situation, it underlines the importance of audio and video files in relations with Court demand.
This has to be extended to Civil process: there will no longer be editorial dimensional limits of technical documents, there will no longer be file format limits of consultant documents.
Obviously, this has not an absolute sense: a mandatory limit has to be preserved for data base dimension for each Part of the process (not a limit for each document as today) while regarding to file format a principles of good sense has to be considered.
If an Engineer has to deposit a document edited in a unconventional operating system, he has to be sure of his failure.
As above discussed and as discussed during its adoption by Parliament, Cartabia Reform has the ambition to carry out a real organic review of the process combined with models of complementary justice, to ensure the enhancement of principles of simplicity, conciseness, data protection effectiveness and, above all, process reasonable duration. Furthermore, reference is made to the requirements that a document must comply with authenticity, integrity, legibility, traceability, interoperability envisaged by the eIDAS regulation (electronic IDentification Authentication and Signature - 2014/910 Guidelines).
On the basis of this renewal idea of the system; on the basis of an intervention on the relationship between ordinary jurisdiction and the forms of alternative and complementary justice; on the basis of to enhance the institutions of mediation and assisted negotiation, it is worth noting the importance of using audio and more videos for a more exhaustive presentation of the facts.
Let us to discuss this in engineering field using two different case studies in Forensic Engineering: the first is the finite element modelling of failure mechanism in the abutment of a small collapsed bridge, this modelling was requested to the Authors in a Judicial process.
As well known and as for engineering current language, the description of the laws of physics for space-dependent and time-dependent problems are usually expressed in terms of partial differential equations (PDEs); for the vast majority of geometries and problems, these PDEs cannot be solved with analytical methods.
Instead, an approximation of the equations can be constructed, typically based upon different types of discretization.
These discretization methods approximate the PDEs with numerical model equations, which can be solved using numerical methods.
The solution to the numerical model equations are, in turn, an approximation of the real solution to the PDEs.
The finite element method (FEM) is used to compute such approximations.
A lot of numerical codes, a lot of software house and many researchers are involved in this activity around the world.
Could appear very simple that, in the absence of video recording of an event in real time, it is possible to reconstruct the various components in a virtual environment.
The Engineer therefore has the possibility, as well as the fundamental task, of modelling the mechanism and the physics itself that he intends to reproduce within the FEM environment, correctly placing constraints, ground connections and connections between components, external effects such as forces and temperatures, and finally choosing the right dimensions for the simulation geometry and time step.
One of the most important aspects to underline is that in FEM analysis, space and time are not continuous concepts, but become successions of points, which in any case succeed in the extraordinary feat of recreating events by circumscribing them in well-defined time horizons. Both elements, space and time, depend on numerical discretization and depend on engineer basic choice.
It appears that the FEM modelling, in addition to offering the tools for the linear and non-linear analysis of the stress in numerical values decipherable only from the inside, through the reproduction of a video that shows the phases in a continuous way, gives the possibility to communicate clearly and exhaustive the trend of particular conditions over time.
Based on these conditions, clearly well-known for an Engineer, for which theme like kinematics and dynamics are, or should be, absolutely clear the standard representation with a model, and a graphical representation, of the FEM type it allows the understanding of the topics even for subjects not having the basic knowledge of the Engineer.
This representation, for which the Engineer assumes responsibility, defining the modelling conditions (geometry, shape functions, constitutive links, constraint conditions, boundary conditions, etc.), becomes formally usable to a wider audience and can become a necessary condition for the issue of a weighted and, above all, balanced judgment.
In many conditions it is not always possible to establish a certain and univocal path: let us imagine, for example, the analysis of a phenomenon whose initial conditions are not experimentally known, how can the Judge, or the Judgment, make a decision which leads to the reconstitution of these initial conditions?
In such a case, only the simulated variations of these initial conditions with the development of the process can lead to such a judgment in a considered way: but this development must be presented in a way that is understandable for a wider audience different that of the Forensic Engineer.
This topic will be developed in a parallel paper: here it should not be overlooked that the basic hypotheses of FEM modelling are extremely delicate and extremely difficult for the non-expert, the Judge, to evaluate.
Then the contradiction between the different figures becomes essential.
On this proposal, it just think of time significance: in FEM model, the time is a discretization parameter, the time represents the sequence of numerical analysis and the sequence of discretization methods that approximate the PDEs with numerical model equations, which can be solved using numerical methods.
If a FEM video is presented to a Court, if the Engineer is not able to underline this aspect, it could be possible that time (numerical) approximation can be assumed by the Court as an absolute value, it could be possible for the Court to make faulty conclusions and it could possible for Justice to fail.
This failure can be considered as unexpected but it has to be considered if no special attention
is no paid to an appropriate visual presentation of data, [
The second case study is the drone photogrammetry survey of an ancient small town involved in the L’Aquila 2009 Earthquake; this survey was carried out by the Authors in the urban rebuilding process in the aftermath of a destructive earthquake.
Among the initial phases that concern a project we have the architectural survey, an operation which is necessary to define the initial conditions (both in a process and in a design planning).
Having a structured documentation, including exact and irrefutable data – essential to reconstruct the initial conditions – allows a clearer understanding, which is crucial to become aware of the circumstances and make correct choices in order to express a judgment in case of a trial.
However, in Forensic Structural Engineering, it’s not always possible to reconstruct or have information related to the initial situation – for example, to have a clear overview of a structure before a collapse occurred – but it’s easy to provide a visual overview of a post-collapse situation, as shown in the Fig. 3.
The proposed zenithal view of the 3D point cloud survey is very clear and it appears as very intellegible for a global audience.
So any person can image to have clear a complex scenario that otherwise it is not really entirely clear.
In fact, as in other Forensic situations such as Forensic medicine, only the Engineer experience permits to obtain correct information starting from an apparently simple reality reproduction.
Only the Engineer experience permits to use correct event and context reconstruction techniques, only the Engineer effort permits to use and to exchange of new and innovative forms of communication in Forensic Structural Engineering.
Finally, the Authors try to contextualize this audio/video form of proposing documents within a transposition used in the literature to define the general scheme of communication processes.
The communication model theorized by Claude Shannon and Warren Weaver, created in 1948 and published in the article “The mathematical theory of communication” was referred to as the “mother of all models”, as shown in Fig. 4.
The objective of the model conceived by Shannon-Weaver was to develop a theory that would make communication systems more efficient, starting from the structure of the essential elements from which it is formed: source, receiver, message, channel, coding and decoding, including the concept of “noise”, understood as “… the interference that obscures the perception of the message …”.
It is not trivial to assume that it can be considered as “noise” the normal audience unpreparedness too.
As well known, the model was integrated with various contributions later, the one shown in the previous diagram is by Wilbur Schramm.
According to Schramm proposal, the closure and one-sidedness of the scheme is transformed into a continuum, made up of coding, decoding and interpretation but above all, it introduces feedback by creating a path similar to the communicative one but in the opposite direction.
The Engineer can be identified with the figure of the Sender, who has the need (given by the
task assigned to him) to transmit a message to the Receiver (Legal and Juridical Actors), the
Message is (video or audio) the virtual reproduction of a real event, [
Generally, in a verbal communication, the Channel is characterized by natural sound and human capacity; but in our case, being the message a video or an audio, it will be the digital tools.
In a companion paper [
In fact, in order to send the Message, which can be interpreted and understood by the Receiver, the Engineer must succeed with many difficulties in using a Numerical Code (understood as linguistic but cultural and/or symbolic) that is clear and whose basic hypotheses are intelligible and the limits.
If the Sender acquires this awareness and ability, he will have greater awareness in understanding the decoding mechanisms of the subjects to whom he will have to address.
Finally, the Decoding of the Code is the process that allows the Receiver to interpret correctly the Sender's message; however, this operation is also far from trivial in the communication between Engineers with Judges, Lawyers and other Parts of the process.
To make the transmission of information as well as the decoding even more difficult we find the Noise which in this context is valid both in the physical sense (the background noise in an environment) and in the broad sense (the thoughts that fluctuate in the head of the recipient).
Above all the noise is the complexity of the theoretical hypotheses that the Sender (Engineer)
has made and that the Receiver (Judge) is not always able to check, [
In a society, like Italian contest, with a markedly humanistic culture, we mainly are forced to entrust the presentation of the results of an activity that has scientific relevance and content to the ability to speak.
We often simply add the written word to the spoken word, disregarding, by the Sender, any efficiency in knowledge, by the Receiver.
For this reason, in this paper it is proposed to use within the current Code background, forms of reproduction and simulation of events, which could allow us to provide new evidence of a different nature, facilitating the achievement of the underlying truth.
That has to govern the final judgment and to characterize its out coming.
All this by invoking the principles of freedom of forms, conciseness and clarity formulated by the Article 121 of actual Italian Code of Civil Procedure regarding of the processual documents.
The paper discusses this topic both in legislative point of view and in practical point of view; two different case studies are presented in order to underline the difficulty for a correct usage of innovative Forms of Communication in Forensic Engineering.
Eng. Regina Finocchiaro thanks both Law Department (Prof. F. Auletta) of University “Federico II” of Naples (Lead Partner) and Legal and Social Sciences Department (Prof. R. Martino) of University “Gabriele d'Annunzio” of Chieti-Pescara (Consortium headquarters) for the support in “Organizational Models and Digital Innovation: the New Office for the System Efficiency Process - Justice (MOD-UPP)”. This Project - PON Governance and Institutional Capacity 2014- 2020 (Axis I, Specific Objective 1.4, Action 1.4.1) – deals with the “Unitary project on the diffusion of the Process Office and for the implementation of innovative operating models in the judicial offices for the disposal of the backlog”.