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PostPosted: Thu Dec 11, 2008 3:05 am   Post subject: CODICE DI PROCEDURA PENALE   

(Code of Criminal Procedure)


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Offline Michael

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PostPosted: Mon Sep 21, 2009 10:38 pm   Post subject: DISCOURSE ON THE ITALIAN CIVIL LAW SYSTEM   


The following discourse on the Italian civil law legal system comprises of extracts from comments by a poster who is a legal expert, signing as 'MacK-MacK', in the comments section of an article on the Meredith Kercher case by Barbie Nadeau on the Daily Beast. To read the full debate in context, simply follow the link posted beneath the quotes. For one to understand the Italian system (as well as in what way it has been manipulated by the PR campaign of the family and supporters of Amanda Knox), this is essential reading. At the time of posting, the debate on the Daily Beast is still live:

MacK-MacK wrote:
This is not a very well though out article, poorly written by an author who assumes that a civil law system (i.e., Italy) should be like a common system, i.e., the US.

First, the presumption of innocence does apply since Article 6 of the European Convention of Human Rights, to which Italy is a signatory, and which is enforced by the European Court in Strasbourg provides detailed rights (1) to a fair trial, including (2) the right to a public hearing before an independent and impartial tribunal within reasonable time, (2) the presumption of innocence, and (3) other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, (4) access to legal representation, (5) right to examine witnesses against them or have them examined, and (6) right to the free assistance of an interpreter) - which makes Italy better than say Texas with appeal to the US Supreme Court.

Second, in a civil law country trial is a two step process. There is a preliminary proceeding conducted by an investigating magistrate (in some civil law countries called a juge d'instruction) who is like a grand-jury in the US system, but with added powers, since he/she can cross examine the police and prosecutor and will only allow a case to go to trial if there is prima facie evidence that the defendant has a case to answer - and which point the defendant gets a trial with the presumption of innocence. The confusion among bad reporters that leads to the idea that when on trial one is "guilty until proven innocent" is because the investigating magistrate only lets a case go to trial if he/she thinks the defendant is guilty, but the trial is a fresh one - that is what is going on now.

The Knox family who are fairly well off in fact, are being badly advised by Washington based criminal lawyers to use publicity in her case, and the publicists they have hired have decided to put the Italian justice system on trial. They have spread potentially libelous stories about the prosecutor and tried to muddy the waters in public. The problem for Knox is that this may well antagonize the court - it is a stupid tactic, being used by people who are trying Seattle court tactics in Italy.

The civil trial system is heavily run by the judges, who have to make the decision. What this means in practice is that they ask a lot of the questions and will when there are problems with evidence keep recalling people to get to the bottom of the issue. This is in contrast to the US system where a witness is heard, examined and cross-examined, and the defense and prosecution tries to score some points during that testimony. In the Italian system, if a question mark is raised, the judges will often call a few witnesses back to ask for explanations.

Knox and Sollecito to me, and I have read most of what has come out in this case, have very serious problems. The trouble Knox has is that ab initio she told the police a pack of lies, implicating an innocent black man (and demonstrably so) as the killer (by the way her choice of Mr. Lumumba is particularly telling since in a country with a smallish black population she chose someone of the same race as Guede - why?) Her alibi is to put it mildly piss-poor and in both her and Sollecito's case they don't match facts that can be established (e.g., cell phone records, computer use.) Sollecito has avoided supporting her alibi in court. The only reasonable conclusion that can be reached is that she and Sollecito were in some way present or involved in at least part of the events on the fatal night - the nature of that involvement is not clear, but the confessions seem to be a starting point for working out what it might be.

It is this inescapable involvement that presents the huge problem - Knox is not telling the truth and Sollecito has stopped really talking at all - however, what Knox now says and Sollecito's lawyers argue are inconsistent with some known facts -- why? What you see the court heading towards is that Knox is trying to tell a false story because the truth must be worse.

I do notice by the way that the fact that Knox fingered Lumumba as the murderer, and that he had a solid alibi is simply not mentioned in this or other press accounts in the US.

7:43 am, Sep 20, 2009

MacK-MacK wrote:
There is also in a lot of the reporting a misunderstanding about rules of evidence in the common law system versus the civil law system. To explain, rules of evidence in common law cases, generally heard for the most part before lay-jurors, that is to say ordinary non-legally-trained people, are very very strict, with principles such as the hearsay rule, high requirements for scientific evidence before it will be considered, etc. This is because of a concern that lay-jurors may be unable to place proper weight on evidence - that they will regard things as unduly prejudicial. Thus in a US case "motions in limine" have a big role - these are motions before trial to exclude evidence - and the usual argument is that evidence is more prejudicial than probative. To explain in a US case the argument would be that this individual piece of DNA evidence should be excluded because their might be something wrong with it, or this statement to the police should be excluded because it makes the defendant look bad and proves less than the prejudice it might create. The evidence about Knox's sex life, sex toys and vibrators, etc., relevant to explain her problems with her roommates (who were uncomfortable with an apparent parade of men at the breakfast table) would have been excluded in the US, because even though they had at least some relevance to the circumstances of the murder and Knox's risky behavior, also make her look bad. In an Italian court they take the view that they can exclude the issue of her morality as a matter of sexual behavior (i.e., do they not like her) from the question of her guilt or innocence.

In a civil law system the jurors are in effect professionals. They are expected to know things like eyewitness identifications are inherently unreliable and the system trusts them to weigh the evidence and its reliability in toto, so for example hearsay is usually allowed. Thus fif there is an issue about say this bloodstain - yes they take account of that, but they do not exclude the bloodstain, they simply regard it as less reliable - but they consider it in context. So the defendants are disputing multiple examples of DNA evidence - the judges will consider each separately, but also collectively - as in how likely is that that all of these separate bloodstains would exist, each supporting Knox and Sollecito's presence. Knox made a statement - she says it was under duress; OK, maybe it was, maybe that makes it unreliable - but some of this physical evidence found after the statement supports the story in the statement - maybe it is reliable. A US court might simply exclude Knox's confession absolutely, and then not consider it in the context of the other evidence.

If you are used to the common law system where evidence is attacked and excluded in isolation you write this sort of article, where you talk about the Sollecito's hammertoe, but now how that matched in with other things. If you understand the civil system you consider it in the context of Knox's challenged confession and wonder does each corroborate the other.

In effect everything is relevant and most things admissible, they are just given different weights as evidence. Things like including Knox's weird behavior in court may have an impact - this continued until someone told her she was not doing herself any favors. Now this article has a demure photo of Knox (presumably from the Knox family publicists) -- other articles, often in the British press (who want to present her as guilty) show her with weird grins on her face and wearing flippant slogans on T-shirts.

You are in effect talking about a fundamentally different system. The most important thing to know is that if a case is brought against you in a civil system, although you have still the presumption of innocence, you have in effect already been tried by the investigating magistrate, who after seeing all the evidence has already concluded that you are guilty. That does not mean that you do not have the presumption of innocence at trial, just that if you do go to trial you have lost once already before an impartial pro (the investigating magistrate) - by contrast in the US New York state Chief Judge Sol Wachtler famously observed that district attorneys have so much influence over grand juries that "by and large" they could get one to "indict a ham sandwich."

By the way, does it occur to anyone that given all the publicity, Sollecito's well connected family, a US citizen, etc., the path of least resistance for the Italians would have been to do what Knox's lawyers want them to do, and simply to have accepted that Guede acted alone -- that is what most criminal justice systems might have done, avoiding the headache of trying these two as well. They had their "goat" why go for more unless they did think Knox was guilty?

12:45 pm, Sep 20, 2009

MacK-MacK wrote:
In most civil systems for serious crimes there are judges 2-5 and also there can be lay jurors (3-8) who are regarded as assisting the judges. In the case of Italy there are two judges (Giudici Togati) and 6 lay jurors/judges (Giudici Popolari) in the Corte d'Assise (serious criminal court.) Lay jurors have to complete at least high school and must be between 35-65. The decisions are taken in a private decision process by discussion among the judges, but in practice a conviction will not occur unless the two professional judges agree.

In effect the professional judges run things and the lay-judges are a safety net against political railroading (a problem in the Facist era.) But then if some juror said say "gosh she kept a vibrator in the bathroom" or "what a slut, she must be guilty" the professional judges would in principle at least warn the jury off this form of logic. The result is a different approach to the presentation of evidence, because the judges are in the room warning everyone of things like "hearsay is inherently unreliable - don't give it more weight than it deserves," etc.

By the way I am not saying one is better than the other -- I am a common law trained international lawyer -- but that you have to understand that they work in fundamentally different ways. Most of the US press commentary assumes the Italian system is the same as the US and therefore people are being railroaded because evidence with a question mark over it has been admitted rather than excluded. The civil system is to bring it in, but warn heavily of the problems with the evidence.

To take another example - normally appeals in a civil system are "de novo" and as of right - that is to say at the first level of appeal the case is heard without regard to the lower court ruling (i.e., the presumption of innocence effectively applies) albeit mostly on the same evidence - while in the Common Law systems appeals presume the lower court was right and you must show it was wrong (with varying standards of review (e.g., clear error, etc.) This is a very big difference in both Civil and Criminal cases.

Journalists need though to spend the time to understand these differences, because they are assessing what is going on through a US prism.

2:25 pm, Sep 20, 2009

MacK-MacK wrote:

You really have no idea do you? You are starting with a particular point of view and you are assuming anyone who disagrees with you has an agenda. You are assuming that the Italians constructed their entire criminal justice system to get one attractive brunette from Seattle, that with someone already convicted for the murder they need to get two extra "scalps."

Look, the police "fit" people up all the time, usually people they think are guilty. However, they do it when they have to get a person for the crime -- but the Italian cops had Guede - so why bother with Knox and Sollecito.

You accuse me of "race-baiting" - which makes you an ignoramus. The point made was that Knox accused one black man - and in a relatively unlikely coincidence (in Italy) a perpetrator and co-accused turned out to be well, black (and not say Albanian, Italian, Romanian etc. (i.e., white) all more likely in that part of Italy.) Of course the court is going to consider the fact that she accused Lumumba - and pretty likely that racial-description point may be considered.

My point about the Knox family being badly advised is also simple -- the Knox family have been told, by Seattle lawyers it seems, to drum up publicity, as well as ill-advised idiots, well, like you, to rant on about Knox being railroaded. This is a tactic that works in the US because of the absence of the UK's sub-judice rule (which makes it largely illegal in the UK, Ireland, Canada, etc.) and it serves to contaminate the jury pool -- so it might be a good idea in Seattle. It is at least a pointless tactic in Italy and - since people get mad at being slandered, and it is howlingly obvious that the Knox family is orchestrating this stuff (check the organizers of free-Knox websites), it may well backfire. It is stupid and indeed Frumpycat you are stupid if you think this sort of ranting helps Knox's situation at all.

Knox has very big problems with her case - she has a lot of explaining to do, but so far none of the explaining makes a lot of sense.

My own guess as to what happened -- Knox was stoned, Sollecito was stoned; Knox brought some acquaintance (Guede) into the apartment and everything went wrong. The police sized up the situation and her behavior and that of Sollecito and concluded they knew something - they tried to BS their way out (in the course of which she accused her former employer - Lumumba) and their stories fell apart. Since then everything has been an effort to get out of the stories they told at the beginning and come up with something consistent with all the evidence. They have not succeeded.

6:30 am, Sep 21, 2009

MacK-MacK wrote:
Oh FrumpyCat -

Are you a law-student perhaps, you have that sort of vanity.

I have passed the bar - in multiple states and I am admitted in 3 countries too.

You comments were just stupid; they reveal that if you were studying evidence you did not pay attention when the exclusionary rule was explained to you (and I would flunk you for not understanding it.)

In common law the general principle regarding evidence is that is assessed on three scales - is it relevant - but also is it prejudicial (i.e., does it make the defendant look generally bad) and finally is it reliable. Because common law systems have non-professional jurors, they have followed a practice of excluding evidence if its reliability is called on any level into question (say hearsay evidence) or if it is considered prejudicial (say sexual behavior) even if it is relevant. The general question on prejudice is does the the bad impression this evidence might create outweigh its value as relevant evidence. Reliability is an almost automatic exclusion, i.e., show any question at all on reliability and that evidence is out (e.g., if is is 99% and not 100% reliable.)

Civil law systems approach things differently because they have professional jurors (the judges.) They allow the judges to assess what weight to put on all relevant evidence and trust them to avoid prejudice and to lower the value of evidence that has reliability issues (like say hearsay, or eyewitness identification (let in in the US.)) The context is that because the finders-of-fact are different and work in a different way, the rules that developed to keep complex evidence from juries do not apply.

As to the question someone posed about acquittal rates -- it is more complicated and less well understood. In any cvil system, Japan, France, Italy - if you are on trial the problem is that an impartial judge - with access to all the evidence - and who was tough on the cops - has already decided you are guilty. So in practice you only go to trial when the state has a very very strong case already, that has passed an investigating magistrate's review. An investigating magistrate is much tougher on the prosecution than a grand-jury. This means that weak cases should not get to trial.

Once on trial you have the presumption of innocence - but - and this is a big point - you would not be there on the word of the police alone, you have already had a sort of mini-trial already.

By contrast, when a US prosecutor brings a case to a grand-jury to get an indictment, the prosecutor decides what to tell the grand-jury. The prosecutor does not have to tell the grand-jury any exculpatory information, he/she does not have to tell that the confession was after say 20 hours of interrogation; the accused's lawyer is not in the grand-jury room. The grand-jury process is entirely one-sided, unlike the investigating magistrate process.

When idiots like FrumpyCat start ranting about the admission of evidence they are missing the point. Knox's sexual behavior is considered relevant because it is evident that the murder was (a) a sex-crime, and (b) because her activities seem consistent with the prosecution's theory of the case, i.e., that she had been having assignations with relatively random men who would be brought back to the apartment almost immediately she met them, and her bemused roommates would find these new guys at the breakfast table. In the US this would have been excluded notwithstanding its relevance as unduly prejudicial ("oh my god she's a slut!!!") In the civil law system it is let in, but the professional judges are supposed to make sure that it is considered only as evidence as to what may have happened, not as to Knox's general morality, or lack of it.

You have to consider this in context though - this information is not going back to a Seattle Jury-Room, it is going to an Italian Jury-Room which works in a different way

7:39 am, Sep 21, 2009

MacK-MacK wrote:
I would look again at the idea of the appeal. The first level of appeals in Italy are de novo, i.e., like a new trial, but all the evidence goes to the appeal court. You have to ask if there is something in there that would lead them to rule differently.

By the way, you need to remember the the "impartial judge," i.e., the investigating magistrate, is not a trial judge. He or she is a judge that reviewed all the evidence both ways and concluded that you looked guilty -- then there is a trial again with the presumption of innocence, then an appeal de novo, then further appeals - not de novo.

2:43 pm, Sep 21, 2009


Commissario Montalbano wrote:
Mack-Mack’s post is correct for the most part, however his description of the civil system is more adapt to describe the French system (and the old Italian system), than the current Italian judicial system introduced in 1989.

The investigating judge (in Italian: giudice istruttore, in French: Juge d’istruction) is a judge, present in certain systems of civil law, which takes place before the preliminary stage of criminal proceedings (investigation stage).
The investigation stage (fase istruttoria, in Italian) has its own characteristics of the inquisitorial model: the investigating judge, in fact, although does not start automatically the process (since the “penal action” must still be started by the prosecutor), provides for the collection of evidence, using the judicial police (equivalent to the investigators of the DA’s office in the US), and examines such evidence.

If, following this stage, believing that we can rule out the guilt of the accused, the investigating judge acquits him, otherwise he will send him to trial. The trial stage takes place before a different judge with a procedure typically accusatory. I’ll explain what accusatory procedure means. In an accusatory procedure system the judge has a neutral role. It is the defendant (through his representative) and the prosecution (through the Pubblico Ministero in Italy) who introduce facts and evidence to the trial. These two parties, and not the judge, have an active role in the trial. The task of the judge is to ensure that the parties to the trial act in accordance with the norms of the procedure code. The accusatory system is what you see in the US courts and also in the current trial in Perugia.

The figure of the Investigating Magistrate (Giudice Istruttore) was present in the Italian Criminal Procedure code prior to the current system. In the framework of the present Procedure Code, which was introduced in 1989 with the Martelli Law (from the name of the sponsoring legislator at the time), the figure of the investigating judge (giudice istruttore) was abolished and the process has now assumed features which are distinctly accusatory. Instead of the investigating judge, the new procedure code has introduced a new figure, a magistrate called “Judge for Preliminary Investigations” (often referred to in Italian as GIP, or Giudice per le Indagini Preliminari).

Unlike the “Giudice Istruttore” who had autonomous powers to collect evidence and decide on the case whether the defendant was innocent or guilty and therefore send to trial, the function of the GIP is to ‘guarantee the indicted suspect during the preliminary investigation’. The GIP does not have autonomous power to collect evidence, he acts only upon request by the parties, generally the prosecutor, who is the one with the power to collect and present evidence before the GIP.

Before their removal for the Italian penal system, the examining magistrate, the Giudice Istruttore, operated within the Italian court (Tribunal), where they were members of the Ufficio d’Istruzione (Investigating Office). The investigating magistrate (giudice istruttore) has been also abolished in other civil law countries, such as Germany (in 1975) while it is still present, among others, in the French, Belgian and Swiss system. In the Iberian countries (Spain and Portugal) his role has been made more marginal. The above mentioned “juge d’instruction” in the French system, is actually the model which inspired the system of all other civil law countries, (including Italy, before the 1989 criminal procedure law reform).

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