Lessons from Reforming Inquisitorial Systems

Abstract

1. Italy's New Criminal Code In 1989, Italy adopted a new code of criminal procedure aimed at transforming an inquisitorial trial system into a system that would include a number of adversary protections.1 Everyone agreed that the Italian system badly needed major reform. The old system had degenerated to the point that Italy's trial system incorporated almost all of the negative aspects one associates with inquisitorial systems?the secret assembly of an investigative file, the dominant importance of this investigative file at the trial, and a near total concentration of power in the judiciary. But although the reforms embodied in the new code were eagerly anticipated, they have not worked well in practice. For example, the attempt to transfer primary responsibility for the presentation of evidence from the judges to the parties has run into problems because it has been difficult for judges to let themselves be bound by the decisions of the parties. A similar problem has thwarted the code's attempt to introduce a limited form of plea bargaining. Al though it permits plea bargaining in minor criminal cases with a fixed sentencing discount in exchange for the bargain, plea bargaining is not used often because judges have a difficult time accepting bargains that mean that a defendant will receive a sentence that is