Italian Style

By MELISSA MICELI

Across the globe, media channels are throwing Amanda Knox back into the spotlight as
many debate whether or not America will allow Italy to extradite Knox for a retrial. In 2007, Knox gained worldwide attention and media scrutiny after her roommate, Meredith Kercher, a London women studying abroad in Perugia, Italy, was brutally murdered.

Now, one year after her acquittal, Knox could face the same pressures and legal processes
of the intense Italian courtrooms. This has shaped itself into an ethical debate while the world watches how drastically one country’s legal system differs from the other. If Knox is extradited, the Italian trial will expose her to “double jeopardy.” This concept violates the U.S. Constitution’s Fifth Amendment. The double jeopardy clause states “…no person be subject for the same offense to be twice put in jeopardy of life or limb.”

The media have clearly highlighted this difference through heated arguments between
the prosecution and defense, provoking polarized reactions throughout Italy and America. Audiences to the Knox case are beginning to see that double jeopardy is just one of many differences between the American and the Italian legal system. Compared to the United States, the Italian courts differ in their practice of interpreting law and delivering justice. Here are the six most prominent differences:

1. Defendants do not have to take an oath to tell the truth.

2. Convicted criminals can automatically appeal.

3. The jury is not sequestered until deliberations.

4. Juries for criminal cases include two judges and six citizens. One of the judges presides over the trial.

5. Verdicts do not need to be unanimous; only a majority is required for a murder conviction.

6. The jury has 90 days to file its explanation of why it made the decisions it did.

Russell Dalferes, a 2001 graduate of Tulane University Law School in New Orleans who
focused on international law while there, has elaborated on these six differences and offered insight on the Amanda Knox case. He is a licensed attorney from Louisiana and now lives in Atlanta after hurricane Katrina forced him out of New Orleans. Dalferes does a lot of work with the International Law Students Association, an organization dedicated to promoting the study of international law, and help administer ILSA’s Jessup international Law Moot Court Competition, which is the largest law-student competition in the world. This year, 600 teams from 90 different countries participated in the competition.

Double Jeopardy Provision in U.S. Law Prevents Hasty Criminal Charges

Focusing first on the double jeopardy provision, Dalferes noted that the United
States/Italy extradition treaty and most other countries call it “ne bis in idem,” which translates from Latin as “not twice in the same.” Provisions are the very basis of the appearance of an unbiased legal system. Without them, governments could just keep prosecuting someone for the same crime until a jury that will convict is found. Such
provisions also ensure that the government doesn’t act too hastily in bringing criminal charges against accused criminals. This practice ensures that governments have sufficient evidence to proceed against the accused or risk not being able to try again.

So does the double jeopardy provision protect the innocent or enable the guilty in
avoiding conviction?

“More than anything else in the legal system,” Dalferes said, “including appeal rights, rules of evidence and the right against self-incrimination, I think the concept of double jeopardy gives the appearance of a fair legal system.”

One of the biggest differences between the U.S. and Italian court system is that defendants in Italy do not have to take an oath to tell the truth. The reasoning not being that Europeans are more trustworthy, but as a result of how a judge operates in either system.

The U.S. operates as an adversarial system with the prosecution versus the defense and a neutral judge playing referee. The judge is essentially there to assure procedural fairness and to make decisions affecting the case that are solely based on law rather than fact. On the other hand, in the Italian system and in most European civil law jurisdictions, the
judge is both a procedural referee and an active participant in the proceedings. This allows judges to question the witnesses and order further investigations for more evidence.

“I think the system in Italy gives more discretion to the judge to weigh the trustworthiness of each individual’s testimony and that’s why they may not require the oath,” Dalferes said. “To be honest, I don’t know why they don’t require the oath, because it’s a pretty standard part of the process around the world.”

The jury system was originally created as part of the English common law system during a time when not every village or town had a sitting judge. It was a panel of upstanding men in the area who were called upon to decide the guilt or innocence of the accused. Taking an oath to tell the truth was a way for the common men serving on juries to judge the worthiness of the testimony. In continental Europe where the civil law system is utilized, juries have never been quite as prevalent. Perhaps that is why an oath is not as important in Italy.

Jury Sequestering Prevents Biased, Wrong Information

Not sequestering the jury is another major difference between Italy and the United States. For complicated cases or cases with a lot of media scrutiny, sequestering the jury from outside influences is beneficial. With 24-hour news cycles and the rush to get the scoop, false information gets aired before checking the facts. Just look at all the misinformation that came out in response to the Boston bombers. We see that media commentary on certain issues can have a pretty drastic effect on public perception.

“The rights of the accused to be considered innocent until proven guilty outweigh the rights of media pundits to speculate on the facts of the case,” Dalferes said.

The composition of judges and juries in Italy also differs from the U.S. There are two judges and six citizens, with one judge presiding over the entire trial.  Judges in continental Europe generally have more of an active role in proceedings than they do in America. Judges in Europe are for the most part considered the fact finders, where the jury is considered the fact finder in criminal cases in America. Judges are more investigative in Italy.

Also, Italy’s system combines criminal and civil proceedings. Remember the O.J. Simpson trial? There was a criminal trial (at which he was acquitted), and then the family of the victims brought a separate civil suit for wrongful death against him (at which he was held liable for their deaths).

In Italy, the criminal prosecution and the wrongful death claims from the family are combined into one criminal proceeding. That is why you have the parents of the murdered girl appealing the decision to set aside the guilty verdict. This would not happen in the United States; once an intermediate appellate court reverses a conviction, the prosecution is no longer allowed to appeal to have the conviction reinstated.

“This clearly has an effect on the double jeopardy issue as well,” Dalferes said. “Because the American view of double jeopardy would not allow an appeal by the prosecution.”

Unanimity Not required

The fifth biggest difference is that verdicts do not need to be unanimous; only a majority is required for a murder conviction. In the United States, many states allow 9 out of 12 votes sufficient for criminal cases. But for capital cases, unanimity is required almost everywhere, except in Italy. Majority voting on cases of this intensity can be detrimental.

“I think unanimity is a very important concept when the possible punishment is to give up either the rest of your life or a large chunk to prison,” Dalferes said. “There should be as many protections as possible to prevent inaccurate convictions for such major crimes.”

In Italy, the jury also has 90 days to file its explanation of why it made a particular decision. In the United States, a juror does not need to explain his or her reasoning.

The Italian court differs from the U.S. court in the way the law is written. America uses common law. For the most part, the public understands the rules, because they are written clearly. Civil law, practiced in Italy, literally means “law of the city.” It is a system of law derived from the laws of the Roman Empire about 2000 years ago. Most civil law
jurisdictions of continental Europe have as the very first provision in their Civil Codes that “law is legislation and custom.” So, the only two sources of law are (1) laws that are passed by the legislature and written down for all to see, and (2) longstanding custom; either local, regional, or national. The result of this system is that civil law jurisdictions usually have more laws written down, and those laws usually cover a much more detailed set of circumstances than in the common law system. There is very little discretion left for the judges to decide on the “gray areas” of the law, because there are so many laws that the gray areas don’t really exist.

A final difference, perhaps the most important of them all, is that in the U.S. you are innocent until proven guilty. In Italy, Knox was thrown into jail cells and held for a year before she could even begin to prove her innocence. During that year, the media had influenced much of the public beyond repair. Life Time Network for women even released a film before her trial was over, in which Knox was portrayed as a gruesome, intoxicated and brutal murderer.

The Italian court system is similar to that of America in the sense that media influence can sway one side or another. Politics and media come down to the dollar as with any other business. This is influential in any country’s legal system. As for Italy, they have had about 60 governments since the end of WWII. The country has a pattern of electing communist leaders, admitted mobsters like Berlusconi or someone equally ineffective. But from the O.J. Simpson trial in America to the sensational Amanda Knox trial in Italy, each
country has demonstrated its flaws. Italy seems rather brutal, but maybe that’s
the media using a sympathy card for the sweet, innocent-looking girl, Amanda
Knox.

“It’s quite a sensational case,” Dalferes said, “so it’s hard not to have a visceral
reaction to it.”

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