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A lesson from Amanda Knox – not all legal systems are created equally
This is my site Written by CPorterEsq on October 4, 2011 – 1:34 pm

As the sensationalist trials of Amanda Knox come to a dramatic end in Italy, friends have started asking me what I think of it all. While I am as happy for Amanda as any other American, there is one thing that continues to gnaw at me as I listen to the applause – our failure to appreciate that other countries have different criminal systems, both in terms of substantive law (the definition of crimes), ultimate punishment, and procedural rules (how the court case is heard). This failure is not only embarrassing, but leaves many Americans tragically unprepared for the consequences of their behavior when traveling or studying abroad.

So rather than comment on Amanda’s guilt or innocence (something I’m completely unqualified to form an opinion about), I thought I’d compile a list some of the most interesting differences between the Italian and American criminal justice systems.

Inquisitorial vs. Adversarial

The first key distinction is the underlying framework of the legal systems. In Italy, the system is inquisitorial – which means it’s designed to uncover the “truth.” In the United States, the system is adversarial – which means it’s designed to pit adversaries against each other for the purpose of producing a “winner.”

Adversarial legal systems inspire an anything-goes attitude that can lead to shenanigans that tend to distort rather than elucidate the truth. (Think O.J. Simpson.) Inquisitorial systems, on the other hand, don’t tolerate tricks. They’re designed to prevent red herring strategies precisely because they can distort the truth.

Of course, whether Italy’s inquisitorial system actually produces the truth is largely dependent on the integrity of the people in the system. Douglas Preston wrote an excellent account of the Italian investigation and trial of the Monster of Florence, which is well worth your time. It reads like the best of today’s crime novels and will certainly make you think twice about getting involved with anything shady in Italy.

The Jury

In Italian criminal cases, the six-member jury includes two professional judges, one of whom is the presiding judge in the case. On one hand, this can be a good thing. The professional training and experience of judges could arguably bring objectivity and less human bias to the decision-making process. On the other hand, the judges will no doubt have tremendous influence on the outcome of deliberations, because lay jurors will be less respected and more likely to bow to authority.

An Italian jury also does not need to reach a unanimous decision to convict for murder, only a majority. I’m not saying this is good or bad, but it does highlight some important issues when the punishment involves taking away someone’s liberty. Do we risk letting a few criminals be acquitted, so that fewer innocent people must do hard time for something they didn’t do? Or do we set a slightly lower standard for conviction, so that someone is made to pay for a crime and assuage our collective outrage?

Finally, the Italian jury is not sequestered until deliberations, opening them to the inflated media coverage of a trial. I don’t have to tell you how problematic this could be in high-profile cases like Amanda’s.

Evidence

During both trials, I was always surprised that Italian prosecutors were allowed to portray Amanda as promiscuous and wanton. In the United States, character evidence like this cannot be introduced in a trial unless the defendant puts it in play. The prosecutor simply can’t talk about what a bad person the defendant is. This is because it’s not usually relevant, it’s distracting, and it could prejudice the jury, leading to a conviction when there isn’t sufficient evidence.

Appeals

The Italian appeals system is probably what saved Amanda. Unlike in the American system, where appeals center on issues of law, not fact, defendants in the Italian system can ask to retry the entire case from scratch in the first round of appeals. This is known as a de novo review and is what allowed Amanda’s legal team to introduce a bunch of evidence that wasn’t presented at the first trial.

Punishment

Finally, in addition to the verdict and sentence, Amanda was ordered to pay punitive damages to the Kercher family — about $4.24 million (2.8 million euros) — which happens in the United States only in a civil trial. Those damages are still pending a separate civil trial, but it’s interesting to note that you might risk both your liberty and your assets if you commit a crime in another country.

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