By Stephanie M. Hunziker, PhD, criminal justice faculty at American Military University
Are you perplexed by the trials, appeals, acquittal, and, most recently, second acquittal of American Amanda Knox in the Italian criminal justice system? You are not alone.
[Related Article: The Negligence in the Collection of Evidence Against Amanda Knox]
The Amanda Knox case highlights key differences between the American and Italian criminal justice systems. Many Americans take for granted their due process rights and the operation of an adversarial judicial system that focuses on the fairness of the proceedings and the rights to defendants—elements that do not exist in the justice systems of other countries.
Many Americans cannot fathom a justice process where the prosecutor (public official) gathers evidence and performs a full investigation, provides a full report to the judge, and then the judge reads it prior to the defendant being made aware of the what the report contains. However, that scenario is how Italy’s justice system often works.
The Italian Justice System
Italy has traditionally had an inquisitorial system where courts are involved in investigations in addition to presiding over court proceedings. In layman’s terms, that means the prosecutor and judge work together in a fact-finding mission (Ogg, 2012). This is an important distinction because in Italy, the judge—who will be deciding a defendant’s guilt or innocence—often knows all of the evidence before the defense and defendant. The judge has likely made up his or her mind about how to proceed in the case before the trial even starts.
Any professional judge would likely be prejudiced after reading the full investigative report, especially if it implies the defendant’s guilt (Grand, 2000). Many scholars have noted that the judge’s decision-making process is likely affected by this process and judges may be inclined to side with the public official’s rendition of the case and evidence.
A move to make the Italian system more adversarial occurred in 1988 with the development of a new Italian code that attempted to replace the inquisitorial practice with one that created a fairer environment for the defendant (Grand, 2000). Under the new code, judges are to act as an unbiased reviewer of evidence and testimony and not help the prosecutor in the fact-finding mission. Many judges, who strongly valued their traditional role, likely considered this new approach as an effort to take away power. To this day, there is little evidence that a real transformation has occurred in Italian courts.
Knowledge of such a justice system was likely new (and shocking) to many Americans following the Amanda Knox trial. As Robbins (2009) pointed out in The New York Times, there are many points of divergence between the court systems in the United States and Italy. Just to name a couple:
- In the United States, a defendant taking the stand must take an oath to tell the truth. In Italy no such oath exists.
- In the United States we grant a trial by a jury of one’s peers for felony defendants if they request it. In Italy there is no actual trial by peers option. Usually the trial is decided by a panel of judges, but for very serious crimes there will be two judges appointed to the trial and six citizens.
- The United States sequesters juries during a trial of grand notoriety. Italy not only does not have a jury system like the U.S., they do not sequester the “lay judges” until the deliberations phase. This means those presiding over the case are listening to the media and taking in information from many different angles—not only the courtroom.
- In the United States, a decision in a murder trial must be unanimous. In Italy the decision only needs to be the majority.
- Finally, and this one goes in Amanda Knox’s favor, in Italy a defendant that has been convicted can request a full review and new trial of fact. In the United States, we only focus on errors of process and application of law in the review and appeals process.
While the March 28 annulment by Italy’s top court of Amanda Knox’s conviction should settle the case once and for all, the nearly decade of courtroom drama demonstrates that Italy’s justice system could use a true overhaul.
About the Author: Dr. Stephanie M. Hunziker has been working in the criminal justice field for the past 15 years and has been teaching courses in criminal justice and law for more than a decade. She teaches courses in policing, courts, the administration of justice, juvenile justice, the future of criminal justice, research methods, and criminal justice policy.
Grande, Elisabetta (2000). Italian criminal justice: Borrowing and resistance. The American Journal of Comparative Law, Vol. 48, No. 2 (Spring, 2000), pp. 227-259.
Ogg, James Thomas (2012). Italian criminal trials: Lost in transition? Differing degrees of criminal justice convergence in Italy and Australia. International Journal of Comparative and Applied Criminal Justice 36.3 (Aug 2012): 229-244.
Robbins, Liz (2009). An American in the Italian wheels of justice. New York Times News Blog, December 5, 2009.
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