The Anthropological expertise in defense peoples: relevance, evidentiary nature and clashes for the reconstruction reconstruction of the facts in criminal procedure

Abstract

The understanding of the science that includes the judicial evidence is related, above all, to the cultural paradigms present in the worldviews that determine the evidence, and these are normally inscribed differently between in each society. The establishment of a valid – and effective – for resolving culturally conditioned conflicts faces relevant issues in the criminal and criminal procedural fields. Starting from a brief historical and doctrinal approach, the present research aims to outline the constitutional relevance of the (effective) implementation of anthropological expertise in criminal proceedings as judicial evidence and, in particular, what are the practical and legal problematic questions for its adoption as an epistemic basis for the criminal culpability of indigenous defendants. Among the questions studied, there is the qualification and insertion of the anthropologist as an expert in the production of evidence in criminal actions involving indigenous people; the influence of the “archetypal Indian” on the valuation of the anthropological study by the judge, an expert in Law, as well as the record of the procedural “truth” in the anthropological report; and, finally, understanding the points involving the frequent dismissal of anthropological expertise by the Judiciary.