Citation: 62 Temp. L. Rev. 1211 1989

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Accusatorial System in a Civil Law Country: The 1988 Italian Code of Criminal Procedure, An [article] Temple Law Review62 Temp. L. Rev. 1211 (1989)Amodio, Ennio; Selvaggi, Eugenio;

AMODIO, Ennio; SELVAGGI, Eugenio. An Accusatorial system in a Civil Law Country: The 1988 Italian Code of Criminal Procedure. Temple Law Review. Philadelphia, p. 1211-1224. jan. 1989.

AN ACCUSATORIAL SYSTEM IN A CIVIL LAWCOUNTRY: THE 1988 ITALIAN CODE OF

CRIMINAL PROCEDURE

Ennio Amodio*Eugenio Selvaggi**

I. REFORMING THE CRIMINAL JUSTICE SYSTEM IN ITALY: THE

ACCUSATORIAL MODEL IN THE 1988 CODE

To a comparativist looking at different systems of criminal justice, the newItalian Code appears as the most outstanding event in the 20th Century. Thelegislation which reshaped the Italian criminal procedure was the result of morethan 20 years exertion by both Parliament and Government. Passed on October24, 1988, the new Code brought into existence the first instance of an accusato-rial system ever known in a country in whose tradition and culture the inquisito-rial approach to criminal justice had always been the rule.

It is not far fetched to say that Italy has gone through something similar tothe upsetting of the procedural patterns the French society experienced some200 years ago, when the revolutionary ideals of the Enlightenment established anew model of criminal justice. Just as the British system was looked at inFrance at that time as a means to graft onto a continental soil such peculiarlycommon law institutions as the justice of the peace, the grand jury, and the trialjury, the Anglo-American culture inspired Italian reformers in 1988 to importbasic aspects of that heretofore alien procedural machinery such as preliminaryhearing, cross-examination, and plea bargaining.

Any analogy that one may find between these historical events should notovershadow the differences in approach and results that become most apparentwhen one compares the criminal justice revolution in late 18th-century France'with the reforming movement that brought about the 1988 Italian Code. TheFrench reformers had a mythical approach to the adversary system, which hadbecome an ideal weapon in the struggle against the Ancien R6gime procedure.By contrast, the Italian scholars involved in the law-reforming process viewedthe Anglo-American model through pragmatic lenses, in full awareness of bothits advantages and drawbacks, as a number of sociological findings have amplyshown.

2

* Professor of Law, University of Milan; Member, Ministerial Commission on Criminal

Procedure.

** Judge, Rome Criminal Court; Member, Ministerial Commission on Criminal Procedure.

1. See Mueller, Lessons of Comparative Criminal Procedure, 15 AM. U.L. REV. 341 (1966), who

states that the French Revolution really was "a criminal-procedure revolution." Id. at 344.

2. See J. BALDWIN & M. MCCONVILLE, COURTS, PROSECUTION AND CONVICTION, 1 (1981)

(for generations, American lawyers and social scientists have inquired into and constructed theories

regarding all aspects of criminal systems).

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Precisely because of such a critical approach, the new Italian criminal pro-cedure has by no means resulted in a mere transplantation of Anglo-Americanpatterns. Any procedural institutions that the Italian drafters borrowed fromBritish or American models were modified and adjusted to the continental tradi-tion, which has retained substantial weight in the new Code. In particular, someof the most significant peculiarities of the nonadversary system have been pre-served to such an extent that it can be fairly stated that the new Italian criminalprocess exhibits an accusatorial soul in a European body.

This article attempts to focus on the outcome of this fascinating merger oftwo traditions. To illustrate how the 1988 Italian Code stands out as a historicalturning point in the headway towards the adversary system, we need to describethe inquisitorial criminal procedure as administered under the repealed 1930Code.

The Italian system under the 1930 Code should be conveniently set in theEuropean context, as it was a reflection of the essential features of the continen-tal criminal procedure patterned after the French code d'instruction criminelle of1808, from which Germany also borrowed her own procedural framework.Such a review will be equally useful to help grasp the extent to which the inquisi-torial legacy from past historical occurrences has been screened and strained inother European countries.

This subject will be discussed here in three parts. First, an outline of theItalian inquisitorial criminal proceedings will be presented in contrast with dif-ferent European systems (a comparison among civil law countries) in sections IIand III of this article. The peculiarities of the 1988 Italian code will be pointedout in contrast with the structure of the 1930 inquisitorial pattern (a comparisonin domestic history) in sections IV and V. Finally, the procedural legislationrecently enacted in Italy will be outlined in parallel with the American adversaryprocedure (a comparison between adversary patterns) in section VI.

This three-tier approach will certainly add some complexity to our reason-ing. Yet, such an overview will hopefully help the American reader, who maybe willing to have a better look at the differences between the implications of theAmerican criminal process and the potentials of a civil law system like the onethat has been just set up in Italy. Unquestionably, one of the most importantgoals of such a comparative approach is to disclose the reasons and roots of anotherwise unexplained diversity of procedural choices.

II. Two CRITERIA AS SELECTIVE TOOLS IN COMPARATIVE CRIMINAL

PROCEDURE: ROLE ALLOCATION AND THE RELATIONSHIP

BETWEEN PHASES

Two criteria, selective tools that identify different approaches to criminalprocedure, focus the organizational pattern of the 1930 Italian Code: the alloca-tion of functions to various public officials, and the relationship between pretrialproceedings and adjudication. The various activities conducted before trial, re-gardless of the specific system of criminal justice under review, fulfill the samefunction-something readily apparent to the comparativist. The stage briefly

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and neutrally described as "pretrial" in the Anglo-American literature is a se-quence of crime detection, investigation, the charging process, and judicial scru-tiny.3 These are but natural requirements recognized under the law or byestablished practice in every legal system. What actually makes the difference,at least as far as comparative law is concerned, is the division of roles betweenvarious judicial or prosecuting officers acting at this stage. When one identifiesthe relevant variables, one can develop a model most useful for comparativepurposes.

As for the second criterion, the extent to which the pretrial proceeding andthe adjudication stage are either interlocked or separated has significant far-reaching implications, mainly in the area of the law governing evidence.

Certainly, it is essential to identify the dichotomy between an accusatorialand an inquisitorial system in order to classify the manner in which proceedingsare conducted. Yet, when either concept is applied at least some qualificationsare needed to dispel any misunderstandings that may still blur the picture. Weshare most American scholars' view that the terms "accusatorial" and "inquisi-torial" are used in so many different ways as to make their meanings almostobscure, even when the variants "adversary" and "nonadversary" are used.4

The accusatorial approach often has been contrasted with the inquisitorialmodel because of an emotional attitude which makes the former the haven ofguaranteed civil liberties, and the latter the symbol of an investigatory and judi-cial technique that sacrifices those same civil liberties on the altar of lawenforcement.

5

Many rigorous scholars have proposed a techno-legal definition in order toescape the distorting influence of ideology and to avoid reinforcing these emo-tional standards by repeated historical impressions. According to this definition,the parties' initiative in collecting and producing evidence and the correspondingrole the judge has to play as the referee in a dispute in which the public prosecu-tor is fully responsible for the burden of defending society by suppressing crimi-nal behavior, are characteristics of an accusatorial system. The inquisitorialprocedure is, however, a procedure in which the judge is expected to take thefact-finding initiative both before and during trial-the state, rather than theparties, is responsible for eliciting the facts of the criminal case. 6 As a result,one can fairly state that the continental criminal procedure carries the imprint of

3. See, e.g., J. SIGLER, The Prosecutor: A Comparative Functional Analysis, in THE PROSECU-

TOR 53, 59 (W. McDonald ed. 1979).

4. Schlesinger, Comparative Criminal Procedure.- A Plea for Utilizing Foreign Experience, 26

BUFFALO L. REV. 361, 362 (1977).

5. Mention to this terminological usage described as "popular" can be found in Goldstein &

Marcus, The Myth of Judicial Supervision in Three "Inquisitorial" Systems: France, Italy and Ger-

many, 87 YALE L.J. 240, 242 n.7 (1977). See also Damaska, Evidentiary Barriers to Conviction and

Two Models of Criminal Procedure: A Comparative Study, 121 U. PA. L. REV. 506, 557 (1973)

(adjective "inquisitorial" is surrounded with 'the aura of dread and mistrust").

6. G. MUELLER, The Position of the Criminal Defendant in the United States of America, in

THE ACCUSED: A COMPARATIVE STUDY 87 (J. Coutts ed. 1966).

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the inquisitorial pattern, whereas the criminal process in common law countriesis fashioned after the accusatorial tradition.

III. THE INQUISITORIAL MODEL IN THE 1930 CODE: CONCENTRATED

FUNCTIONS AND INTERLOCKED PHASES IN CONTINENTAL

PATTERNS

No doubt, the system implemented in Italy under the 1930 Code reflectedthe typical inquisitorial model. The pretrial examining phase (istruzione)showed a rather marked concentration of functions in the hands of one official.Furthermore, it was a stage deeply interlocked with the adjudicationproceedings.

The entire inquisitorial setting was one in which the figure of the giudiceistruttore was responsible for inquiring into criminal cases, charging the accusedwith offenses, and determining whether there was enough evidence to bind overthe defendant to appear before the court for trial. It is not by chance that theAmerican scholars use the term "investigating magistrate" to stress the concen-trated roles this judicial officer has had to play since France first created thejuged'instruction, imported into Italy soon afterwards. 7

True, a prosecuting officer has always worked hand in hand with the inves-tigating magistrate since the very beginning, when the figure of the public prose-cutor was established under the 1808 code d'instruction criminelle (theNapoleonic Code) in France. It is a figure also known to the Italian system inthe so-called "formal examination" (istruzione formale), as it was known in theVoruntersuchung practice in the Federal Republic of Germany until 1974. Yet,if we look beyond the law in the books to consider the law in action, the conti-nental system in actual operation reveals the presence of a public prosecutorwho is almost entirely deprived of power vis-A-vis the investigating magistrate'sdominance.

8

The same was true of the role an Italian public prosecutor had to playwhen, under the 1930 Code, he or she conducted an inquiry in the so-called"summary examination' (istruzione sommaria). Here, we had a prosecuting of-ficer who investigated and then, as a judge, made an assessment of findings is-sued from his own inquiry. In this respect, the tendency to concentrate thedifferent functions of the pretrial phase in the hands of one official alone had noequal in the rest of continental Europe. In France, the procureur de la Rdpub-lique may conduct an enquete prdliminaire into minor offenses (misdemeanors),without, however, enjoying the powers accorded to the Italian public prosecutorat the summary examining stage; in French prosecutorial investigations, asearch of premises and seizure can only be performed with the consent of the

7. See Mueller & Le Poole, The United States Commissioner Compared with the European In-vestigating Magistrate, 10 CRiM. L.Q. 159 (1967-68).

8. AMODIO, Uguaglianza delle armi nel processo, presunzione di innocenza e ruolo del giudice

istruttore, L'INDICE PEN. 237 (1981). The investigating magistrate also fully absorbs the accusatory

function of the public prosecutor in the French practice. See CHAMBON, LE JUGE D'INSTRUCTION

123 (1981).

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party involved.9 Only pending an enqute de flagrance for major offenses(crimes over which the Court of Assizes has jurisdiction) may the public prose-cutor order the suspect to be brought before him (mandat d'amener). 0 Italianprosecutors, however, were allowed to issue warrants of arrest only prior to Au-gust, 1988, when a statute anticipating some provisions of the newly developedCode abolished such an anomalous authority.'I In terms of role allocation, the1930 Italian system was a departure from both the French and the Germanprocedures, the latter never having known a public prosecutor vested with any"judicial" capacity.

The French Code requires the examining magistrate and the judge sitting toscreen "dossiers" to be two separate persons. It is not for the juge dinstructionto determine whether an indictment should be issued and a case bound over fortrial. After investigation, the examining magistrate delivers a dossier to eitherthe Chambre d'instruction, a judicial body including the magistrate himself 12 if

the case involves minor offenses, or to the Procureur Goneral, who will requestthe Chambre d'accusation to conduct a committal proceeding when the offensebeing investigated is a crime for which the Court of Assizes has jurisdiction.' 3

Article 265 of the Italian Code of Criminal Procedure of 1913 provided asimilar process that allocated the screening procedure to the Sezione di Accusa ofthe Court of Appeal for crimes for which the Court of Assizes was competent.The 1930 Code, however, did not confirm this approach, thus further expandingthe tendency to concentrate powers into the hands of the investigatingmagistrate. t4

The Strafprozessordnung (Code of Criminal Procedure) in the Federal Re-public of Germany has adopted and maintained the same requirement, thoughwith a different mechanism. However serious the offence may be, and regardlessof the body which conducted preliminary investigations, the final step in the pre-trial stage is the so-called "intermediate proceeding" (Zwischenverfahren), a pro-cedural sequence taking place between the end of the prosecutorial activities andthe commencement of the trial procedure. Any charges the Staatsanwalt (publicprosecutor) may have filed must be reviewed to establish whether or not an adju-dication hearing shall be held. The pretrial screening, a proceeding largely re-sembling the judicial scrutiny committed to the Chambre d'accusation inFrance, is allocated to the same judge, who will then have jurisdiction to try the

9. CODE DE PROCEDURE PtNALE [C. PR. PEN.] art. 76 (Fr.).10. Id. art. 70. For a discussion of the preliminary investigation by the French public prosecu-

tor, see PRADEL, PROCEDURE PtNALE, 373 (1985), and SHEEHAN, CRIMINAL PROCEDURE IN

SCOTLAND AND FRANCE 40 (1975), for a comparative study in which the practice is also reviewed.

11. Pretrial Custody Act, No. 330 (Italy 1988).12. JOURNAL OFFICIEL DE LA REPUBLIQUE FRANCAISE [JO.] no. 1303 (Fr.).13. C. PR. PEN. art. 181.

14. Less recent authority still bore the distinction between investigating magistrates and the

judges sitting to hear the results of investigations. See MANZINI, TRATrATO DI DIRITTO PROCESSU-

ALE PENALE ITALIANO 122 (Conso 6th ed. 1968). It should be pointed out that the 1865 Italian

Code provided for the Council Chamber, a collegiate body competent in evaluating evidence col-

lected by the investigating magistrate. This institution was abolished under the 1913 Code. See

MORTARA-ALOISI, SPIEGAZIONE PRATICA DEL CODICE DI PROCEDURA PENALE 544 (1924).

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case. '5 He or she may either order to open the trial (Eroffnungsbeschluss) or todismiss the case (Einstellung), although the latter solution appears to beseldomly applied. 16

As for the concentration of roles, it should be remembered that the pretoresurvived in Italy under the 1930 Code as an actual inquisitorial judge of old,whose responsibility was to investigate and try minor offences in a combinationof prosecutorial and adjudicative functions. In fact, there was not even a prose-cutor's office to take action before a pretore.

Over and above the many normative choices that are available, the entirecontinental system of criminal procedure is beginning to exhibit a tendency toseparate these roles in practice. Thus, law enforcement bodies frequently prevaileven as a public prosecutor is formally responsible for the dnquete or theVorverfahren.

In summary, the concentration of functions in the hand of only one body,tendentiously symbolic of the continental pattern in the pretrial phase, has beencorrected in two ways. First in the legislation, which requires the functions ofthe investigating body to be separated from those of the judge sitting to screendossiers in the French and German systems. Then in legal practice, where thepublic prosecutor is only involved in the charging process after the law enforce-ment bodies have collected the relevant evidentiary elements.

The other of the two features, identified above as peculiar to the pretrialstage in the Italian criminal procedure, equally applies to every continental sys-tem. In France and West Germany, the preliminary investigation and the trialprocedure are unbroken links in the same chain of activity. The stage before theadjudication proceeding is already a form of trial, and becomes the trial as soonas the investigatory work products of the public prosecutor, the magistrate, andthe police come together to form a dossier, a file which is made known to, andreviewed by, the trier of fact, who makes an almost unlimited use of it in reach-ing his decision. 17 This file provides the umbilical cord that joins the two phasestogether into one body to the point that the adjudication exercise is "a trial ofthe dossier, rather than of the accused" 18 because of the degenerations that havecome about in practice in both the Italian and French systems.

15. StrafprozeBordnung § 199 (W. Ger.).16. See Roxin, Strafverfahrensrecht, 18 AUFL. 228 (1983), who points out how entrusting con-

trol over a trial opening with the same judge as the one competent to determine innocence or guilt ofthe accused makes this control virtually ineffective. The author proposes the institution of an Er-offnungsgericht, which would end up having a position similar to that assigned to the magistrate inthe committal proceedings under the accusatorial system.

17. The statement applies, in particular, to the French and Italian jurisdictions, as Germanydevised its system differently. Significantly, an English scholar writes that the continental pretrialprocedure "is a unity which can be broken only at the risk of a distortion." See J. CouTrs, ThePublic Interest and the Interest of the Accused in the Criminal Process, in THE ACCUSED: A COM-PARATIVE STUDY 4 (J. Coutts ed. 1966).

18. See id. (quoting Anton).

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IV. AN OUTLINE OF THE PRETRIAL PHASE UNDER THE 1988CODE OF CRIMINAL PROCEDURE

If we now move on to an overview of the system which was enacted in Italyin 1988, it becomes readily apparent that criminal procedure has been entirelyrebuilt. The new Code exhibits an accusatorial soul as far as it separates theprosecuting role from the adjudicative one and breaks the chain between prelim-inary investigations and the trial.

One can identify the main feature of the new system in the very structure ofthe judiciary organization. The new Code has abolished every anomalous func-tion tainted with inquisitorial stains. The new Code has thus jettisoned the in-vestigating magistrate (giudice istruttore) and the prosecutor acting in a judicialcapacity during the summary examination as provided for by the 1930 legisla-tion. Furthermore, while retaining the pretore in name, the new system has en-tirely reshaped this judiciary function by setting up a prosecutor's office whichcomes before the pretore to investigate minor offences and to dischargeprosecutorial responsibilities in the courtroom.

As for the relationship between phases, a similar upheaval has occurred.For the first time in a century, a continental system of criminal justice has de-parted from the Napoleonic model, under which the pretrial examining phase(istruzione) is regarded as the main stage where the truth is ascertained, thusreducing the adjudication proceedings to a mere rehearsal of the investigativefindings. The unbroken structure of the procedure under the 1930 Code-anundivided chain of actions from police investigations to the judgment deliveredin the courtroom-is split into two parts in the new Code with a clear-cut de-marcation between them. Pretrial investigations take place outside the criminalprocess, the starting point of which is the public prosecutor filing the charginginstrument. 19

As a result, any evidence collected during the law enforcement agencies' orthe prosecutor's investigations is designed to provide probable cause with a viewto arresting the suspect or binding him over for trial. A basically evidentiaryrule prevents the trier of fact from using evidence other than that lawfully ad-mitted and produced at trial. 20 This means the end of the pretrial-centeredmodel enforced under the 1930 inquisitorial system. The adjudication stage isnow the proper domain for a proof-taking process.

The draftsmen of the new Code have devised a simple, yet highly produc-tive mechanism. The traditional dossier is split into two parts; the smaller partcontains the binding-over instrument as well as a record of the investigative ac-tivities the police or the prosecutor would be unable to perform twice (such assearch, seizure, and wiretapping), 2 I and the larger part incorporates the wholeof the pretrial work product, obviously including witnesses' statements, declara-

19. CODICE Dl PROCEDURA PENALE [C.P.P.] art. 405 (Italy). Hereinafter, references to arti-cles of criminal process legislation are designed to point to sections of the 1988 Code of CriminalProcedure, effective January 1, 1990.

20. C.P.P. art. 526.21. Id. art. 431.

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tions by the accused, and the like.22 Only the first of the two sections is handedover to the trial judge who will review it before the hearing. The new legislationrequires the public prosecutor to keep the second section (the public prosecu-tor's file) in his office, and to make it available to the defense attorney forinspection.

When viewed in light of its basic principles, the working of the 1988 Codeof Criminal Procedure may look quite simple. The responsibility for prelimi-nary investigations vests in the public prosecutor, who applies to an entirely newjudicial officer, the pretrial judge, to issue warrants of arrest or wiretapping. 23

Yet, the prosecutor retains authority to issue search warrants and orders forholding and questioning suspects in the event that the police investigate majoroffences and when there are reasonable grounds to believe the suspect mightflee. 24 As a general rule, the 1988 Code requires the police to operate underspecific orders from the prosecutor, and are only entitled to collect evidence ontheir own motion until the prosecutor has taken over and issued his directionsfor the inquiry. 25

The pretrial judge's position is crucial to the proper functioning of the newsystem. Unlike the now superseded giudice istruttore, the investigating magis-trate in the inquisitorial pattern, the new judge plays a passive role during thepreliminary investigations. The judge, in a strictly impartial position, supervisesthe prosecution of the case at every crucial step.

The new Code requires the prosecutor to apply to the judge when he or shewants to obtain an order to allow investigations to extend beyond the deadlineprovided for under the law. 26 Moreover, the pretrial judge may permit eitherthe public prosecutor or the counsel for defense to examine promptly any wit-ness whenever there are reasonable grounds to believe that the prospective wit-ness might not be heard at trial because of illness or threats designed to preventhim or her from appearing in court.2 7 This special procedure, called incidenteprobatorio, is an anticipation of the trial itself, a piece of the adjudication stageexceptionally taking place in the pretrial phase. Obviously, in such instance thesame law implemented in the courtroom, when the judge hears evidence as pro-duced by direct and cross-examination of the witness, governs the anticipatedproof-taking process.

Finally, under the new Code the pretrial judge is responsible for determin-ing whether or not probable cause exists for filing a criminal charge at the end ofthe investigation. As a result, the prosecutor cannot dismiss a case on his or herown authority, and may file a request for dismissal (archiviazione) only if theprosecutor believes that there is inadequate evidence to pursue the case. Underthe constitutional rule of compulsory prosecution, 28 the judicial scrutiny of the

22. Id. art. 433.23. Id. art. 291, 267.24. Id. art. 253, 384.25. Id. art. 348.26. Id. art. 406.27. Id. art. 392.28. COSTITUZIONE [COST.] art. 112 (Italy).

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findings from investigation may result in a mandamus order either to performfurther prosecutorial activities or to bring a formal criminal charge 29 wheneverthe judge finds factual grounds in the file the prosecutor submits forconsideration.

As an alternative to lodging a request for dismissal, the prosecutor can onlyclose investigations prior to the deadline provided for under the law by filing acharge document called "richiesta di rinvio a giudizio" (an information request-ing that the defendant be bound over for trial). The pretrial judge then holds apreliminary adversary hearing to determine whether or not the prosecution hasmade out a showing that a prima facie case can be established at trial. Thestandard provided for under Article 425 requires the judge to deliver a dismissaldecision only where there is irrebuttable evidence that a crime has not been com-mitted or the defendant did not, in fact, commit it. 30 This means that the prose-cutor's burden of persuasion is less heavy than the one being placed on himwhen he has to prove guilt at trial.

The intermediate and final supervisory steps in the prosecutorial screeningprocess under the new Code do not entirely discharge the pretrial judge's officialduties. The judge is also involved in two different case disposition procedureswhich take place before trial: (a) imposing the sentence previously negotiatedbetween the parties (bargaining process), and (b) determining guilt or nonguilt atthe time of the preliminary hearing (pretrial summary adjudication).

As for the bargaining process itself, it should be noted that the judge isunder no obligation to endorse-as if in a notarial capacity-any agreement theparties may have reached. The judge is free to reject any settlement so negoti-ated whenever the accusation lacks a factual basis or none of the essential factsalleged therein appear to constitute the offence so charged. Likewise, the judgemay reject the penalty specifically agreed to by the prosecutor and the accused (afine or up to two years imprisonment that the parties negotiated after taking intoaccount any aggravating or mitigating circumstances) if it is erroneous in law orinadequate in light of the seriousness of the crime. 3t In playing an impartial rolethat prevents him or her from taking any part in the negotiations, the pretrialjudge, however, must be satisfied as to the compliance of the agreement with theprovisions of substantive criminal law. This is why charges cannot be bargained.

A special provision in the new Code allows for penalty mitigation when theaccused pleads for sentence negotiation or applies for pretrial summary adjudi-cation with the prosecutor's agreement. 32 On the one hand, this special proce-dure is somewhat similar to the English summary trial to the extent that itresults in an adjudicatory hearing being held before a pretrial judge. On theother hand, the procedure exhibits features resembling those of the American

29. C.P.P. art. 409.

30. Id. art. 425.31. Id. art. 444.32. Id. art. 438. In the former case, sentence reduction will be up to one-third of the penalty

established as the maximum by the criminal code. In the latter case, mitigation by one-third isprovided for under the law.

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"trial on stipulated facts" 33 in that it allows the judge to rule about the caseupon findings from the preliminary investigations.

Obviously, the above alternative procedures in the new Italian system aredesigned to reduce case load pressure. Undoubtedly, the new approach to atrial-centered model will create a great deal of difficulty, because proof-takingwill be the parties' responsibility and they will have to produce evidence throughpainstaking direct and cross-examination efforts. Unlike the trial hearing underthe 1930 Code, in which the judge had the lion's share of the responsibility toconduct hasty examinations based on the "dossier," the adjudication will bemore time-consuming in the new system. The ultimate goal pursued by the au-thors of the new Code has been to set the trial phase as the main step in theprocedure, while still providing for alternative procedures to bypass it in mostinstances.

V. AN ACCUSATORIAL SOUL IN A CONTINENTAL BODY: PARTYPRESENTATION OF EVIDENCE WITHIN THE COMPULSORY

PROSECUTION RULE

At this point, an attempt should be made to elucidate the features throughwhich the new Italian system of criminal justice reveals its accusatorial soul.The drafters developed the 1988 Code of Criminal Procedure on the basic prin-ciple of presentation of evidence by the parties. Unlike the 1930 inquisitorialsystem, that required the evidentiary structure to be framed around an officialinquiry conducted by the judge, the legislation recently enacted acknowledgesthe parties' right to produce evidence, call witnesses, and examine them. Thebest illustration of this adversary approach is the provision requiring that "evi-dence shall be admitted on request from a party ... the judge being solely al-lowed to take evidence on his or her own motion where a specific provision inthe Code grants him special authority to do so." 34

Party initiative in evidentiary matters obviously operates both at the pre-liminary investigation stage and at trial. In the investigation phase, the antici-pated proof-taking process (incidente probatorio) begins when either theprosecutor or the accused files a request to that effect-the pretrial judge lacksany authority to initiate such a special procedure on his or her own motion evenwhen some risks may result from delayed action. The same is true of the prelim-inary hearing, since the responsibility of presenting evidence material to dismissthe case or to send the defendant to trial rests entirely with the parties. 35 Fi-nally, the trial structure exhibits the most peculiar features of the adversary pat-tern. Following the opening speech about case presentation and motions toadmit proof, both the prosecutor and the counsel for the defendant produce theevidence for their cases through direct and cross-examination of witnesses, ex-perts, and the defendant himself. The examination of evidence may look simpler

33. On this special procedure, see W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE 822(1985).

34. C.P.P. art. 190.35. Id. art. 422.

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than that deeply rooted in the Anglo-American tradition. But the new Coderetains the fundamental adversary character of the latter-the prosecution's evi-dence (prove a carico) is distinguished from exculpatory evidence (prove a discar-ico). 36 The burden of introducing evidence as well as the burden of persuasionhave become the cornerstones of the new Italian system of criminal justice.

It is worth observing that the adversary structure of the adjudication phasein the new system does not force the judge to play an entirely passive role. Thenew Code grants the fact-finder the power to question the witness after the par-ties have completed their own examination. Furthermore, the judge retains theauthority to call witnesses on his or her own motion should an absolute needarise to get additional evidence after the prosecution and the defense have closedtheir cases. 37 It is clear, however, that these judicial powers are designed tooperate only if the parties fail to produce adequate evidence in presenting theircases. In other words, the narrow scope of the fact-finder's active role survivingin the new Code by no means impairs the full operation of the burden of evi-dence placed on the prosecutor.

The progress towards the accusatorial model could not be extended beyondthe evidentiary domain. The rule of compulsory prosecution provided for underthe Italian Constitution has prevented the system from being entirely reshapedin the area of party disposition of cases. The common law enables prosecutorsto dispose of the criminal action as they are free either to decline prosecution orto enter a nolle prosequi after filing a charging document in court. Likewise,defendants may enter a plea of guilty, thus discharging the prosecution from theburden of proving the facts at issue.

Under the new Italian Code, however, it is still outside the power of theparties to enter, jointly or severally, a disposal of a criminal case as if it were aprivate law suit. This provides a link with the European tradition and a depar-ture from the pure adversary model. Discretion in prosecuting or pleadingguilty has not been taken up, but the new Code does provide for party presenta-tion of evidence. That is why one can talk about the 1988 Code of CriminalProcedure as having an accusatorial soul in a continental body.

True, a tendency towards reducing the scope of the compulsory prosecutionrule clearly emerges from the new legislation. The pretrial alternative proce-dures discussed above play a crucial role in allowing both the prosecution andthe defense to weigh heavily on the judicial disposition of cases. Neither settle-ments reached under the new Italian bargaining process nor consent given bythe prosecutor and the defendant as to the pretrial summary adjudication pre-vent the court from refusing to approve any such agreement. Yet, any decisiondelivered in such special procedures leaves a very narrow scope for judicial scru-tiny with respect to the way of adjudicating cases that is rooted in the continen-

36. Id. art. 495.37. Id. art. 507. The court may also appoint experts or gather real evidence under the same

authority as granted under Art. 507. Before acting on its own motion, the court must indicate anyfacts still lacking probative support to the parties. Id. art. 506. The judicial power to collect evi-dence, therefore, clearly aims at filling the evidentiary gap resulting from the parties' failure to dis-charge their burden of proof.

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tal criminal procedure. As a result, both prosecution and defense have acquireda prominent function which is entirely unknown to the structure of the inquisi-torial system.

VI. COMPARING THE NEW CODE WITH THE

U.S. CRIMINAL PROCEDURE

We can now compare the new Italian system with the American criminaljustice process. Quite beyond any similarity to be found in the separation of theinvestigative and supervisory roles, the pretrial phase under the 1988 Code ex-hibits the same measure of difference when contrasted with the setting providedfor by pretrial law and practice in the United States. An Italian prosecutor willbe an investigator with, so to speak, "limited sovereignty," in that his or heractivity will be conducted under the pretrial judge's close supervision. At leastin the view of the drafters of the new Code, judicial control shall shield thedefendants, and shall protect their fundamental guarantees (such as freedom andprivacy in communicating), and procedural rights (such as a speedy trial and theright not to be unduly sent to trial) against any law enforcement agency orprosecutorial abuse. Furthermore, judicial scrutiny seeks to prevent any ille-gally managed screening of complaints by the prosecutor- something whichwould result in a violation of his duty to treat any citizen equally before thelaw. 38

By contrast, the American police and prosecutors are much more free intheir actions. Even where law and practice provide for judicial supervision, as inthe issuance of warrants of arrest or case screening in preliminary hearings, itworks as an ineffective filter in actual operation. This is a result of the imbalanceof the forces colliding at the pretrial stage: the prosecutor is a strong actor whoplays his role before a weak magistrate, which envisages the charging process asa task fully pertaining to the government.

In addition, it should be observed that, in the Italian criminal process, thepolice and the prosecutor are restricted in their investigating activities by theattendance of the defense attorney, whose scope is much broader than thatemerging from the American pretrial practice-the working of the exclusionaryrule notwithstanding. The suspect must be assisted by a counsel, whether re-tained or assigned, during police interrogation even when he or she has not beenarrested or held for questioning. 39 The right to counsel's assistance is also pro-vided for at some of the crucial stages of the investigations conducted by theprosecutor, such as the interrogation of suspects or their confrontation with wit-nesses or codefendants,4° scientific tests carried out when any danger may resultfrom delayed action 41 or, finally, when physical examinations, searches, orseizures are required.

It should be also remembered that, in the anticipated proof-taking process

38. COST. art. 3.39. C.P.P. art. 350.40. Id. art. 364.41. Id. art. 360.

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before the pretrial judge, the new Code grants the counsel for the defense theright of cross-examining any codefendants, experts appointed by the court, orwitnesses, even when called for identification parades. 42

As for the actual trial phase, the new Italian criminal process is patternedafter the Anglo-American model. The clear cut split between pretrial proce-dures and adjudication has led to the adoption of a law of evidence framed onthe hearsay rule. As a general rule, out-of-court statements are inadmissible inevidence and can be used for impeachment purposes only during direct or cross-examination. 43 According to the common law tradition, an exception to the ruleis only provided when the party has been given a chance to cross-examine thewitness at the hearing for the anticipated proof-taking process.44 At trial, evenstatements the accused may have made out of court are inadmissible. Neverthe-less, the new Code extends full probative value to statements the suspect made toeither the prosecutor or the pretrial judge after the prosecutor has impeachedthe defendant in the courtroom. 45

The working of the hearsay rule will let the judge go fresh to trial. As aconsequence, an entirely new form of courtroom communication will develop inactual operation. 46 Under the 1930 Code, the fact-finder received a great deal ofinformation about the case from the dossier, which provided him or her with alogical plot of the facts in issue well in advance of the trial. By contrast, in thenew system, the opening speech and witness examination are the necessary toolsfor informing the judge about facts with which he or she is not yet acquainted.Like the common law criminal procedure, the 1988 Italian Code sets a privilegeto the parties with respect to the court as to the reconstruction of the facts mak-ing up the alleged offence. The trier of fact relies on party presentation to getacquainted with the case, as they know what the judge has to perceive promptlyin the courtroom.

A last point should be made, however, to show a marked difference betweenthe two systems. The Italian Code requires mandatory pretrial discovery of theentire police and prosecution work product.47 Such an expansive defense dis-covery reflects the purpose of rejecting the sporting theory of justice. To Italianlawyers, a trial by surprise would be an unbearable violation of the constitu-tional provision on due process of law.48

In closing our discussion, a very plain conclusion may be drawn. The Ital-ian criminal justice system has adopted a model which broadens the rights of the

42. Id. art. 392.43. Id. art. 500.44. Id. art. 403.45. Id. art. 503.46. Concerning the techniques being applied to the American jury trial to inform the fact-

finder, see W. BENNET & M. FELDMAN, RECONSTRUCTING REALITY IN THE COURTROOM (1981).Among continental scholars concerned with the need to develop a new communication framework incriminal trials, see Herrmann, Ein neues Hauptverhandlungsmodell, in ZEITSCHRIFT FOR DIEGESAMTE STRAFRECHTSWISSENSCHAFr 41, 100 (1988).

47. C.P.P. art. 416.48. COST. art. 24.

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accused and makes the prosecution's burden for conviction heavier. By con-trast, the United States's criminal procedure seems to have gradually shifted inthese few years towards a slight erosion of its accusatorial structure to the extentto which it accepts the risk of impairing the community's security in settingsuspects at liberty as a ground for pretrial detention or restricts the scope ofexclusionary rules.

Such strikingly different trends can be easily explained through compara-tive tools. While the American procedural policy reacts to the excesses of adver-sariness, the Italian reforming steps reflect a willingness to reject anyshortcomings that inquisitorial patterns framed on the judge's pivotal positionmay bring about. It would be then mistaken for continentals to borrow correc-tive tendencies from the American legal system instead of echoing the realframework of its accusatorial structure.

In Italy, there was a need to cure the ailments of a "de-lawyerized" systemby developing a new scheme to compensate the parties for the powers deprivedof them so far by a dominant decisionmaker. Likewise, if the Americans are tosolve their own problems, they should look less at the inquisitorial patterns wehave rejected than at the new structure the 1988 Italian Code of Criminal Proce-dure has envisaged, thus paving a European road to the accusatorial system.

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