Practical guide

How to draft a richiesta di prova atipica, atypical evidence request, with AI

3 min read · Updated September 2026 · Editorial oversight: Avv. Federico Papa

The admission of prove non disciplinate dalla legge, evidence not expressly regulated by law, requires a rigorous assessment of its suitability and respect for the person's libertà morale, moral liberty. This guide explains how to structure the motion to convince the judge of the necessity of atypical evidence.

In brief

The richiesta di prova atipica, atypical evidence request, under Art. 189 c.p.p. is the procedural tool used to introduce evidentiary means not specifically codified, such as novel technological or scientific methods. The motion must demonstrate that the tool is suitable for fact-finding and does not infringe upon the individual's moral liberty. After hearing the parties, the judge rules on admission and defines the assunzione della prova, taking of evidence, to ensure contraddittorio, cross-examination, and reliability.

The steps

1.
Verification of atypicality requirements
The first step involves ensuring the evidentiary tool does not fit into a standard legal framework. Art. 189 c.p.p. cannot be used to circumvent prohibitions established for typical evidence. If the tool is a variation of existing evidence, you must justify why the ordinary procedure is insufficient. edit.legal assists in comparing the case with codified categories to avoid dismissal due to attempts at bypassing the legal limits of typical evidence.
2.
Demonstration of suitability for fact-finding
The motion must provide an analytical description of the tool's ability to provide useful elements for the court's decision. For new scientific or technological evidence, e.g. data analysis software or novel forensic techniques, you must attach documentation certifying methodological validity. You must explain to the judge why that specific tool is necessary to prove the fact in question, adhering to the criteria of pertinence and relevance required by the criminal procedure system.
3.
Certification of respect for moral liberty
An insurmountable element of Art. 189 c.p.p. is the protection of the individual's libertà morale, moral liberty, in conjunction with Art. 188 c.p.p. Evidence that influences self-determination or the capacity to recall and evaluate facts, such as narco-analysis or hypnosis, cannot be admitted. The motion must explicitly reassure the judge that the modalities of taking evidence do not violate the fundamental rights of the suspect or third parties, ensuring the authenticity of the source and the absence of psychological coercion.
4.
Proposal of modalities for taking evidence
Unlike typical evidence, atypical evidence requires the judge to determine 'how' it should be taken. The defense or the moving party must propose an operational protocol that ensures the right to contraddittorio, cross-examination. If it involves an experiment or technical analysis, you must include provisions for the participation of consulenti di parte, party experts. edit.legal facilitates the drafting of protocols that balance evidentiary efficacy with the right to defense, providing templates for managing technical cross-examination.
5.
Identification of the procedural stage for filing
Atypical evidence can be requested during preliminary investigations, via incidente probatorio, evidentiary hearing, if requirements are met, in the preliminary hearing, or most commonly, during evidence requests at the trial's opening under Art. 493 c.p.p. It is essential to respect the deadlines for filing the lista testimoniale, witness list, if the atypical evidence involves examining people. The drafting must be timely to avoid decadenza, forfeiture, especially when the evidence requires technical preparation or complex judicial authorizations.

Legal basis: Art. 189 c.p.p.Art. 188 c.p.p.Art. 190 c.p.p.Art. 190-bis c.p.p.Art. 493 c.p.p.

Mistakes to avoid

Labeling as atypical evidence that is actually typical evidence taken irregularly.
Failing to propose the modalities of taking evidence, leaving total operational discretion to the judge.
Requesting evidence that, while technologically new, violates the ban on narco-analysis or lie detector tests.
Forgetting to attach CVs or scientific references certifying the reliability of the new technological tool.

Frequently asked questions

Can the judge admit atypical evidence ex officio?

Yes, but only in cases where the judge has powers of evidentiary supplementation, for example Art. 507 c.p.p., while still remaining obligated to hear the parties regarding the modalities of taking the evidence.

What happens if atypical evidence violates moral liberty?

The evidence is subject to inutilizzabilità under Articles 188 and 191 c.p.p., as the prohibition of methods influencing the freedom of self-determination is absolute.

Can Art. 189 be used to admit anonymous testimony?

No, established case law holds that atypical evidence cannot be used to overcome express prohibitions or to evade the defendant's right to confront the accuser.

Editorial oversight: Avv. Federico Papa·ICAMUpdated 17 September 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction

What edit.legal automates

—Verification that the requested tool does not fall under standard typical evidence categories.
—Suggestion of protocols for taking evidence that guarantee cross-examination rights.
—Consistency check between evidentiary goals and the prohibitions of Art. 188 c.p.p.
—Structuring the justification for the scientific or technological suitability of the tool.