Accusatorial System in a Civil Law Country: The 1988 Italian Code of Criminal

Procedure, An [article]
Temple Law Review
62 Temp. L. Rev. 1211 (1989)
Amodio, Ennio; Selvaggi, Eugenio;
+(,121/,1(
Citation: 62 Temp. L. Rev. 1211 1989

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.

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 AN ACCUSATORIAL SYSTEM IN A CIVIL LAW
COUNTRY: 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 new

Italian Code appears as the most outstanding event in the 20th Century. The
legislation which reshaped the Italian criminal procedure was the result of more
than 20 years exertion by both Parliament and Government. Passed on October
24, 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 to
the upsetting of the procedural patterns the French society experienced some
200 years ago, when the revolutionary ideals of the Enlightenment established a
new model of criminal justice. Just as the British system was looked at in
France at that time as a means to graft onto a continental soil such peculiarly
common law institutions as the justice of the peace, the grand jury, and the trial
jury, the Anglo-American culture inspired Italian reformers in 1988 to import
basic aspects of that heretofore alien procedural machinery such as preliminary
hearing, cross-examination, and plea bargaining.
Any analogy that one may find between these historical events should not
overshadow the differences in approach and results that become most apparent
when one compares the criminal justice revolution in late 18th-century France'
with the reforming movement that brought about the 1988 Italian Code. The
French reformers had a mythical approach to the adversary system, which had
become an ideal weapon in the struggle against the Ancien R6gime procedure.
By contrast, the Italian scholars involved in the law-reforming process viewed
the Anglo-American model through pragmatic lenses, in full awareness of both
its advantages and drawbacks, as a number of sociological findings have amply
2
shown.

* 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 CriminalProcedure, 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).

1211
1212 TEMPLE LAW REVIEW [Vol. 62

Precisely because of such a critical approach, the new Italian criminal pro-
cedure has by no means resulted in a mere transplantation of Anglo-American
patterns. Any procedural institutions that the Italian drafters borrowed from
British or American models were modified and adjusted to the continental tradi-
tion, which has retained substantial weight in the new Code. In particular, some
of 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 criminal
process exhibits an accusatorial soul in a European body.
This article attempts to focus on the outcome of this fascinating merger of
two traditions. To illustrate how the 1988 Italian Code stands out as a historical
turning point in the headway towards the adversary system, we need to describe
the inquisitorial criminal procedure as administered under the repealed 1930
Code.
The Italian system under the 1930 Code should be conveniently set in the
European context, as it was a reflection of the essential features of the continen-
tal criminal procedure patterned after the French code d'instruction criminelle of
1808, 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 in
other European countries.
This subject will be discussed here in three parts. First, an outline of the
Italian inquisitorial criminal proceedings will be presented in contrast with dif-
ferent European systems (a comparison among civil law countries) in sections II
and III of this article. The peculiarities of the 1988 Italian code will be pointed
out in contrast with the structure of the 1930 inquisitorial pattern (a comparison
in domestic history) in sections IV and V. Finally, the procedural legislation
recently enacted in Italy will be outlined in parallel with the American adversary
procedure (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 may
be willing to have a better look at the differences between the implications of the
American criminal process and the potentials of a civil law system like the one
that has been just set up in Italy. Unquestionably, one of the most important
goals of such a comparative approach is to disclose the reasons and roots of an
otherwise 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 criminal

procedure, focus the organizational pattern of the 1930 Italian Code: the alloca-
tion of functions to various public officials, and the relationship between pretrial
proceedings and adjudication. The various activities conducted before trial, re-
gardless of the specific system of criminal justice under review, fulfill the same
function-something readily apparent to the comparativist. The stage briefly
1989] ITALIAN CODE 1213

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 by
established practice in every legal system. What actually makes the difference,
at least as far as comparative law is concerned, is the division of roles between
various judicial or prosecuting officers acting at this stage. When one identifies
the relevant variables, one can develop a model most useful for comparative
purposes.
As for the second criterion, the extent to which the pretrial proceeding and
the 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 accusatorial
and an inquisitorial system in order to classify the manner in which proceedings
are conducted. Yet, when either concept is applied at least some qualifications
are needed to dispel any misunderstandings that may still blur the picture. We
share most American scholars' view that the terms "accusatorial" and "inquisi-
torial" are used in so many different ways as to make their meanings almost 4
obscure, even when the variants "adversary" and "nonadversary" are used.
The accusatorial approach often has been contrasted with the inquisitorial
model because of an emotional attitude which makes the former the haven of
guaranteed civil liberties, and the latter the symbol of an investigatory and judi-
cial technique that sacrifices those same civil liberties on the altar of law
5
enforcement.
Many rigorous scholars have proposed a techno-legal definition in order to
escape 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 corresponding
role 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 inquisitorial
procedure is, however, a procedure in which the judge is expected to take the
fact-finding initiative both before and during trial-the state, rather than the
parties, 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 FunctionalAnalysis, 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 JudicialSupervision in Three "Inquisitorial"Systems: France, Italy and Ger-
many, 87 YALE L.J. 240, 242 n.7 (1977). See also Damaska, Evidentiary Barriersto 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).
1214 TEMPLE LAW REVIEW [Vol. 62

the inquisitorial pattern, whereas the criminal process in common law countries
is 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 reflected
the 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 adjudication
proceedings.
The entire inquisitorial setting was one in which the figure of the giudice
istruttore was responsible for inquiring into criminal cases, charging the accused
with offenses, and determining whether there was enough evidence to bind over
the defendant to appear before the court for trial. It is not by chance that the
American scholars use the term "investigating magistrate" to stress the concen-
trated roles this judicial officer has had to play since France first created thejuge
7
d'instruction, imported into Italy soon afterwards.
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 (the
Napoleonic Code) in France. It is a figure also known to the Italian system in
the so-called "formal examination" (istruzioneformale), as it was known in the
Voruntersuchungpractice 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 prosecutor
who is almost entirely deprived of power vis-A-vis the investigating magistrate's
8
dominance.
The same was true of the role an Italian public prosecutor had to play
when, under the 1930 Code, he or she conducted an inquiry in the so-called
"summary examination' (istruzionesommaria). 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 the
different functions of the pretrial phase in the hands of one official alone had no
equal in the rest of continental Europe. In France, the procureur de la Rdpub-
lique may conduct an enquete prdliminaireinto minor offenses (misdemeanors),
without, however, enjoying the powers accorded to the Italian public prosecutor
at the summary examining stage; in French prosecutorial investigations, a
search 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, Uguaglianzadelle 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).
1989] ITALIAN CODE 1215

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 Italian
prosecutors, however, were allowed to issue warrants of arrest only prior to Au-
gust, 1988, when a statute anticipating some provisions of the newly developed
Code abolished such an anomalous authority.'I In terms of role allocation, the
1930 Italian system was a departure from both the French and the German
procedures, the latter never having known a public prosecutor vested with any
"judicial" capacity.
The French Code requires the examining magistrate and the judge sitting to
screen "dossiers" to be two separate persons. It is not for the juge dinstruction
to determine whether an indictment should be issued and a case bound over for
trial. After investigation, the examining magistrate delivers a dossier to either
the Chambre d'instruction, a judicial body including the magistrate himself 12 if
the case involves minor offenses, or to the ProcureurGoneral, who will request
the Chambre d'accusation to conduct a committal proceeding when the offense3
being investigated is a crime for which the Court of Assizes has jurisdiction.'
Article 265 of the Italian Code of Criminal Procedure of 1913 provided a
similar process that allocated the screening procedure to the Sezione di Accusa of
the Court of Appeal for crimes for which the Court of Assizes was competent.
The 1930 Code, however, did not confirm this approach, thus further expanding
the tendency to concentrate powers into the hands of the investigating
magistrate. t4
The Strafprozessordnung (Code of Criminal Procedure) in the Federal Re-
public of Germany has adopted and maintained the same requirement, though
with a different mechanism. However serious the offence may be, and regardless
of 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 and
the commencement of the trial procedure. Any charges the Staatsanwalt(public
prosecutor) 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 in
France, 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).
1216 TEMPLE LAW REVIEW [Vol. 62

case. '5 He or she may either order to open the trial (Eroffnungsbeschluss)or to
dismiss the case (Einstellung), although the latter solution appears to be
seldomly applied. 16
As for the concentration of roles, it should be remembered that the pretore
survived in Italy under the 1930 Code as an actual inquisitorial judge of old,
whose responsibility was to investigate and try minor offences in a combination
of 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 entire
continental system of criminal procedure is beginning to exhibit a tendency to
separate these roles in practice. Thus, law enforcement bodies frequently prevail
even as a public prosecutor is formally responsible for the dnquete or the
Vorverfahren.
In summary, the concentration of functions in the hand of only one body,
tendentiously symbolic of the continental pattern in the pretrial phase, has been
corrected in two ways. First in the legislation, which requires the functions of
the investigating body to be separated from those of the judge sitting to screen
dossiers in the French and German systems. Then in legal practice, where the
public 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 pretrial
stage in the Italian criminal procedure, equally applies to every continental sys-
tem. In France and West Germany, the preliminary investigation and the trial
procedure are unbroken links in the same chain of activity. The stage before the
adjudication proceeding is already a form of trial, and becomes the trial as soon
as the investigatory work products of the public prosecutor, the magistrate, and
the police come together to form a dossier, a file which is made known to, and
reviewed 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 phases
together into one body to the point that the adjudication exercise is "a trial of
the dossier, rather than of the accused" 18 because of the degenerations that have
come 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 of
the 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 in
the committal proceedings under the accusatorial system.
17. The statement applies, in particular, to the French and Italian jurisdictions, as Germany
devised its system differently. Significantly, an English scholar writes that the continental pretrial
procedure "is a unity which can be broken only at the risk of a distortion." See J. CouTrs, The
Public Interest and the Interest of the Accused in the CriminalProcess, in THE ACCUSED: A COM-
PARATIVE STUDY 4 (J. Coutts ed. 1966).
18. See id. (quoting Anton).
1989] ITALIAN CODE 1217

IV. AN OUTLINE OF THE PRETRIAL PHASE UNDER THE 1988

CODE OF CRIMINAL PROCEDURE

If we now move on to an overview of the system which was enacted in Italy

in 1988, it becomes readily apparent that criminal procedure has been entirely
rebuilt. The new Code exhibits an accusatorial soul as far as it separates the
prosecuting 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 of
the 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 (giudiceistruttore) and the prosecutor acting in a judicial
capacity 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 which
comes before the pretore to investigate minor offences and to discharge
prosecutorial 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, thus
reducing the adjudication proceedings to a mere rehearsal of the investigative
findings. The unbroken structure of the procedure under the 1930 Code-an
undivided chain of actions from police investigations to the judgment delivered
in 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 criminal
process, the starting point of which is the public prosecutor filing the charging
instrument. 19
As a result, any evidence collected during the law enforcement agencies' or
the prosecutor's investigations is designed to provide probable cause with a view
to arresting the suspect or binding him over for trial. A basically evidentiary
rule 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-centered
model enforced under the 1930 inquisitorial system. The adjudication stage is
now 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 part
contains 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 as
search, seizure, and wiretapping), 2 I and the larger part incorporates the whole
of 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 Criminal
Procedure, effective January 1, 1990.
20. C.P.P. art. 526.
21. Id. art. 431.
1218 TEMPLE LAW REVIEW [Vol. 62

tions by the accused, and the like. 22 Only the first of the two sections is handed
over to the trial judge who will review it before the hearing. The new legislation
requires 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 for
inspection.
When viewed in light of its basic principles, the working of the 1988 Code
of Criminal Procedure may look quite simple. The responsibility for prelimi-
nary investigations vests in the public prosecutor, who applies to an entirely new
23
judicial officer, the pretrial judge, to issue warrants of arrest or wiretapping.
Yet, the prosecutor retains authority to issue search warrants and orders for
holding and questioning suspects in the event that the police investigate major
offences and when there are reasonable grounds to believe the suspect might
flee. 24 As a general rule, the 1988 Code requires the police to operate under
specific orders from the prosecutor, and are only entitled to collect evidence on
their own motion until the prosecutor has taken over and issued his directions
25
for the inquiry.
The pretrial judge's position is crucial to the proper functioning of the new
system. Unlike the now superseded giudice istruttore, the investigating magis-
trate in the inquisitorial pattern, the new judge plays a passive role during the
preliminary investigations. The judge, in a strictly impartial position, supervises
the prosecution of the case at every crucial step.
The new Code requires the prosecutor to apply to the judge when he or she
wants to obtain an order to allow investigations to extend beyond the deadline
provided for under the law. 26 Moreover, the pretrial judge may permit either
the 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 prevent
him or her from appearing in court.2 7 This special procedure, called incidente
probatorio,is an anticipation of the trial itself, a piece of the adjudication stage
exceptionally taking place in the pretrial phase. Obviously, in such instance the
same law implemented in the courtroom, when the judge hears evidence as pro-
duced by direct and cross-examination of the witness, governs the anticipated
proof-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 of
the investigation. As a result, the prosecutor cannot dismiss a case on his or her
own authority, and may file a request for dismissal (archiviazione) only if the
prosecutor believes that there is inadequate evidence to pursue the case. Under
the 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).
 1989] ITALIAN CODE 1219

findings from investigation may result in a mandamus order either to perform

further prosecutorial activities or to bring a formal criminal charge 29 whenever
the judge finds factual grounds in the file the prosecutor submits for
consideration.
As an alternative to lodging a request for dismissal, the prosecutor can only
close investigations prior to the deadline provided for under the law by filing a
charge document called "richiesta di rinvio a giudizio" (an information request-
ing that the defendant be bound over for trial). The pretrial judge then holds a
preliminary adversary hearing to determine whether or not the prosecution has
made out a showing that a prima facie case can be established at trial. The
standard provided for under Article 425 requires the judge to deliver a dismissal
decision 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 him
when he has to prove guilt at trial.
The intermediate and final supervisory steps in the prosecutorial screening
process under the new Code do not entirely discharge the pretrial judge's official
duties. The judge is also involved in two different case disposition procedures
which take place before trial: (a) imposing the sentence previously negotiated
between the parties (bargaining process), and (b) determining guilt or nonguilt at
the time of the preliminary hearing (pretrial summary adjudication).
As for the bargaining process itself, it should be noted that the judge is
under no obligation to endorse-as if in a notarial capacity-any agreement the
parties 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 facts
alleged therein appear to constitute the offence so charged. Likewise, the judge
may reject the penalty specifically agreed to by the prosecutor and the accused (a
fine or up to two years imprisonment that the parties negotiated after taking into
account any aggravating or mitigating circumstances) if it is erroneous in law or
inadequate in light of the seriousness of the crime. 3t In playing an impartial role
that prevents him or her from taking any part in the negotiations, the pretrial
judge, however, must be satisfied as to the compliance of the agreement with the
provisions of substantive criminal law. This is why charges cannot be bargained.
A special provision in the new Code allows for penalty mitigation when the
accused 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 it
results in an adjudicatory hearing being held before a pretrial judge. On the
other 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 is
provided for under the law.
1220 TEMPLE LAW REVIEW [Vol. 62

"trial on stipulated facts" 33 in that it allows the judge to rule about the case
upon findings from the preliminary investigations.
Obviously, the above alternative procedures in the new Italian system are
designed to reduce case load pressure. Undoubtedly, the new approach to a
trial-centered model will create a great deal of difficulty, because proof-taking
will be the parties' responsibility and they will have to produce evidence through
painstaking direct and cross-examination efforts. Unlike the trial hearing under
the 1930 Code, in which the judge had the lion's share of the responsibility to
conduct hasty examinations based on the "dossier," the adjudication will be
more 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 the
procedure, while still providing for alternative procedures to bypass it in most
instances.

V. AN ACCUSATORIAL SOUL IN A CONTINENTAL BODY: PARTY

PRESENTATION OF EVIDENCE WITHIN THE COMPULSORY
PROSECUTION RULE

At this point, an attempt should be made to elucidate the features through

which 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 inquisitorial
system, that required the evidentiary structure to be framed around an official
inquiry conducted by the judge, the legislation recently enacted acknowledges
the parties' right to produce evidence, call witnesses, and examine them. The
best 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 in
34
the Code grants him special authority to do so."
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 the
prosecutor or the accused files a request to that effect-the pretrial judge lacks
any authority to initiate such a special procedure on his or her own motion even
when some risks may result from delayed action. The same is true of the prelim-
inary hearing, since the responsibility of presenting evidence material to dismiss
the 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 to
admit proof, both the prosecutor and the counsel for the defendant produce the
evidence 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.
 1989] ITALIAN CODE 1221

than that deeply rooted in the Anglo-American tradition. But the new Code
retains 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 persuasion
have become the cornerstones of the new Italian system of criminal justice.
It is worth observing that the adversary structure of the adjudication phase
in the new system does not force the judge to play an entirely passive role. The
new Code grants the fact-finder the power to question the witness after the par-
ties have completed their own examination. Furthermore, the judge retains the
authority to call witnesses on his or her own motion should an absolute need
arise to get additional evidence after the prosecution and the defense have closed
their cases. 37 It is clear, however, that these judicial powers are designed to
operate only if the parties fail to produce adequate evidence in presenting their
cases. In other words, the narrow scope of the fact-finder's active role surviving
in 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 beyond
the evidentiary domain. The rule of compulsory prosecution provided for under
the Italian Constitution has prevented the system from being entirely reshaped
in the area of party disposition of cases. The common law enables prosecutors
to dispose of the criminal action as they are free either to decline prosecution or
to enter a nolle prosequi after filing a charging document in court. Likewise,
defendants may enter a plea of guilty, thus discharging the prosecution from the
burden of proving the facts at issue.
Under the new Italian Code, however, it is still outside the power of the
parties to enter, jointly or severally, a disposal of a criminal case as if it were a
private law suit. This provides a link with the European tradition and a depar-
ture from the pure adversary model. Discretion in prosecuting or pleading
guilty 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 Criminal
Procedure as having an accusatorial soul in a continental body.
True, a tendency towards reducing the scope of the compulsory prosecution
rule clearly emerges from the new legislation. The pretrial alternative proce-
dures discussed above play a crucial role in allowing both the prosecution and
the defense to weigh heavily on the judicial disposition of cases. Neither settle-
ments reached under the new Italian bargaining process nor consent given by
the prosecutor and the defendant as to the pretrial summary adjudication pre-
vent the court from refusing to approve any such agreement. Yet, any decision
delivered 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 any
facts 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.
1222 TEMPLE LAW REVIEW [Vol. 62

tal criminal procedure. As a result, both prosecution and defense have acquired
a 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 criminal
justice process. Quite beyond any similarity to be found in the separation of the
investigative and supervisory roles, the pretrial phase under the 1988 Code ex-
hibits the same measure of difference when contrasted with the setting provided
for by pretrial law and practice in the United States. An Italian prosecutor will
be an investigator with, so to speak, "limited sovereignty," in that his or her
activity will be conducted under the pretrial judge's close supervision. At least
in the view of the drafters of the new Code, judicial control shall shield the
defendants, and shall protect their fundamental guarantees (such as freedom and
privacy in communicating), and procedural rights (such as a speedy trial and the
right not to be unduly sent to trial) against any law enforcement agency or
prosecutorial abuse. Furthermore, judicial scrutiny seeks to prevent any ille-
gally managed screening of complaints by the prosecutor- something which
would result in a violation of his duty to treat any citizen equally before the
38
law.
By contrast, the American police and prosecutors are much more free in
their actions. Even where law and practice provide for judicial supervision, as in
the issuance of warrants of arrest or case screening in preliminary hearings, it
works as an ineffective filter in actual operation. This is a result of the imbalance
of the forces colliding at the pretrial stage: the prosecutor is a strong actor who
plays his role before a weak magistrate, which envisages the charging process as
a task fully pertaining to the government.
In addition, it should be observed that, in the Italian criminal process, the
police and the prosecutor are restricted in their investigating activities by the
attendance of the defense attorney, whose scope is much broader than that
emerging from the American pretrial practice-the working of the exclusionary
rule notwithstanding. The suspect must be assisted by a counsel, whether re-
tained or assigned, during police interrogation even when he or she has not been
arrested 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 the
prosecutor, such as the interrogation of suspects or their confrontation with wit-
nesses or codefendants, 4° scientific tests carried out when any danger may result
from delayed action 41 or, finally, when physical examinations, searches, or
seizures 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.
1989] ITALIAN CODE 1223

before the pretrial judge, the new Code grants the counsel for the defense the
right of cross-examining any codefendants, experts appointed by the court, or
42
witnesses, even when called for identification parades.
As for the actual trial phase, the new Italian criminal process is patterned
after 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 on
the hearsay rule. As a general rule, out-of-court statements are inadmissible in
evidence and can be used for impeachment purposes only during direct or cross-
examination. 43 According to the common law tradition, an exception to the rule
is only provided when the party has been given a chance to cross-examine the
witness at the hearing for the anticipated proof-taking process. 44 At trial, even
statements the accused may have made out of court are inadmissible. Neverthe-
less, the new Code extends full probative value to statements the suspect made to
either the prosecutor or the pretrial judge after the prosecutor has impeached
45
the defendant in the courtroom.
The working of the hearsay rule will let the judge go fresh to trial. As a
consequence, an entirely new form of courtroom communication will develop in
actual operation. 46 Under the 1930 Code, the fact-finder received a great deal of
information about the case from the dossier, which provided him or her with a
logical plot of the facts in issue well in advance of the trial. By contrast, in the
new system, the opening speech and witness examination are the necessary tools
for 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 privilege
to 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 get
acquainted with the case, as they know what the judge has to perceive promptly
in the courtroom.
A last point should be made, however, to show a marked difference between
the two systems. The Italian Code requires mandatory pretrial discovery of the
entire police and prosecution work product.47 Such an expansive defense dis-
covery reflects the purpose of rejecting the sporting theory of justice. To Italian
lawyers, a trial by surprise would be an unbearable violation of the constitu-
48
tional provision on due process of law.
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 in
criminal trials, see Herrmann, Ein neues Hauptverhandlungsmodell, in ZEITSCHRIFT FOR DIE
GESAMTE STRAFRECHTSWISSENSCHAFr 41, 100 (1988).
47. C.P.P. art. 416.
48. COST. art. 24.
1224 TEMPLE LAW REVIEW

accused and makes the prosecution's burden for conviction heavier. By con-
trast, the United States's criminal procedure seems to have gradually shifted in
these few years towards a slight erosion of its accusatorial structure to the extent
to which it accepts the risk of impairing the community's security in setting
suspects at liberty as a ground for pretrial detention or restricts the scope of
exclusionary 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 any
shortcomings that inquisitorial patterns framed on the judge's pivotal position
may bring about. It would be then mistaken for continentals to borrow correc-
tive tendencies from the American legal system instead of echoing the real
framework of its accusatorial structure.
In Italy, there was a need to cure the ailments of a "de-lawyerized" system
by developing a new scheme to compensate the parties for the powers deprived
of them so far by a dominant decisionmaker. Likewise, if the Americans are to
solve their own problems, they should look less at the inquisitorial patterns we
have 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.