One can hope that if the cost is higher, the accusations would be less frivolous.
And why not force people who accuse the police of misconduct to back up their words? I think we should all be a little better off if we took a bit from Italy’s libel laws and applied it here
I’d guess not one American in a hundred knows what the difference between common- and civil-law systems is, including all the ones posting in this thread who aren’t attorneys (and even then, only in passing).
I know that common law comes from England and is employed in countries such as the U.K., the U.S., and Canada, for example. I know that civil law comes from the Napoleonic Code, and is employed in countries such as France, Italy, and Spain.
I think that while common law presumes innocence, civil law does not, and that that affects the role of the judge in a trial.
Um . . . that’s about it. I hope I passed the audition.
Okay, two. 
For our purposes, the key difference is the method, which clairobscur alludes to. Common law systems are adversarial, whereas civil law systems are inquisitorial.
The job of a civil law judge is to determine what the truth is. The job of a common law judge is to determine who makes a better case. That sometimes means that justice is not as important in our system as winning- if your attorney doesn’t bring up a fact on which your innocent hangs, the judge probably won’t either.
Make it 0. Presumption of innocence is a feature of various civil law systems (not surprising since civil law systems are closer to their Latin roots than common law systems are). Among them, Italy.
In fact, I don’t think there’s any civil law system that don’t presume innocence.
I think that this belief (lack of a presumption of innocence) comes from the fact that the prosecution doesn’t have to prove guilt (which is a different issue), or even can in fact argue that the accused is innocent (it very rarely happens, but it
does happen).
It’s up to the court to makes its mind on the case, on the basis of the elements presented and even of relevant elements that haven’t been mentioned by the prosecution and/or the defense (for instance, the judge will typically question witnesses himself. Not in Italy, though, AFAIK).
“Prosecutor” isn’t even a good word for a civil law system : the “prosecutor” represents the interests of the state/public, which isn’t necessarily getting a conviction in a given trial, even though it usually is, and in a “classical” system it’s not his job either to find evidences, or to determine if somebody ought to be tried. His job (to simplify a lot) is to look at the evidences gathered by an “investigative” judge (not a trial judge), determine on this basis if it’s in the general interest to argue for guilt in front of the court, doing so (or not, as the case might be) and propose an appropriate sentence (or request an acquital).
So, the prosecution doesn’t in any way have to prove guilt, and I guess that’s the origin of the canard about the lack of presumption of innocence.
But Italy using some sort of “middle of the road” system, where the prosecutor is in charge of the enquiry (again, I think under some sort of supervision), I’m not very sure what asymetry of power between the prosecution and the defense there is there.
When you have a chance (doesn’t have to be today), could you explain the difference between an investigative judge and a trial judge, please?
Your post is more helpful and informative than the previous one, by the way.
What I call an investigative judge is in charge of the enquiry. He gathers evidences about the case, both against the suspect and exculpatory, on his own or sometimes at the request of the prosecutor or of the suspect’s lawyer, give orders to the police, leads searches, hear witnesses, etc… If he believes that there’s a case against someone, he sends the case for review to a court that decides whether or not the accused should be tried (what an american grand jury does, if I’m not mistaken).
His job stops there, and he doesn’t take part in the trial (in rare instances, he might be called as a witness, which generally means that he appears to have seriously botched his job, and that the court wants him to do some splaining about it).
Basically, he’s doing what the prosecutor does in a common law system, except that the common law prosecutor search for evidences proving his case, while the civil law investigative judge is required to search for all relevant evidences, including exculpatory evidences.
What I call a trial judge is…well, a judge present at the trial. Using the evidences, written testimonies, etc… gathered by the investigative judge, he presides and conducts the trial, hearing witnesses directly and overseeing their examinations by the lawyers/prosecutor, presenting the evidences, ordering new investigations/expertise if they appear necessary during the trial, directing the jurors if there are jurors, etc…
As mentionned above by another poster, his job (or more exactly the job of the court he is part of) is to actively seek the truth during the trial, not just to be a kind of referee between the prosecution and the defense, like in the common law adversarial system.
An investigative judge can become a trial judge during his career (or the other way around), at least here in France. But at a given point in time, a judge is either one or another (only conducting enquiries or only presiding trials).
There’s no investigative judge in Italy. According to wikipedia, they’ve now become “judges for the preliminary investigations”, with apparently a role limited to make sure that the prosecutor in charge of the enquiry doesn’t violate the defendant’s rights.
Wikpedia seems to have a rather complete entry about the Italian criminal procedure , more relevant to this thread that my descrption, since, as I already said, the Italian procedure has evolved considerably towards a much more adversarial system.
Cool. That way, Obama could have all the Birthers arrested.
For the record, I really don’t care if the accusations are true or not, because that’s beside the point. The idea that someone can be thrown in jail just for making an accusation is reprehensible. As others have mentioned, this is the sort of tactic that is typically associated with despotic third-world regimes who want to stifle dissent. It has no place in a democratic society.
I understand the concept of libel. If one of the cops wanted to sue the Knoxes for defamation, I would have no problem with that. But to file criminal charges against them is pure state-sponsored thuggery. Never mind the fact that the comments weren’t even made in Italy, so why do they even presume to apply Italian law to the situation?
I decided to look into this, and here’s what appears to be the original article that set off these charges. From the article
So, folks who talk to a British newspaper, while in Seattle can be charged with a crime in Italy?
As has been pointed out to you though. This only seems strange from your own worldview and experiences.
And it isn’t that they get thrown in jail without trail, and truth is a defence here. If they can prove they are right then fine. I see no reason to suspect they won’t get a fair trial on those charges should they come to court.
You may suggest that it is strange to commit the crime in one country and be tried by another but hey, that is the way the E.U. and Italy works. Ignorance of the law isn’t a defence.
The ability of the state to lodge criminal charges for libel may be similar to the way some despotic regimes do “justice” but it isn’t the defining factor.
Personally I don’t like it. Were this part of my own justice system I would campaign to change it but I don’t see it on the same level as other, much more important issues. Such as the death penalty or three strikes.
Which was actually done before the trial ended. understandably they were trying everything they could to throw doubt on the investigation. In the article it is clear they are trying to use their contacts to do this.
It also sounds like they went against the initial advice of their Italian lawyers. It would be interesting to know if they were forewarned this would happen
It was probably a stupid, desperate act by them. A shame…but tough.
Explained this already:
I might be alright with it if they were terrorists planning to kill people in Italy. Since they’re not, and this indictment only serves to prevent them from ever seeing their daughter again, I’m still going to consider it a dick move.
Actually, it serves to notify them that they’ve been charged with the commission of a crime under Italian law.
Oh, is that all it is? I guess it’s just my imagination to think that if they ever try to visit their daughter, they’ll be detained at the airport, get their passports taken away and held as a “flight risk” until their trial, whenever the Italians get around to it. Then, once convicted, they can spend a few years in the clink before finally getting to visit their daughter.
Yeah, it’s probably not really going to prevent them from visiting.
That’s not what you said. You said it only serves to do that.
I’m pretty sure their Italian lawyers warned them not to do this thing. But they needed to keep the outrage alive in America, keep the case on the front page. If their pretty young daughter doing time in an Italian prison stops evoking sympathy, they clearly need to come up with something else. Family unable to ever visit daughter in foreign prison, does just that. I think what we see here is people accustomed to getting their way, pulling out all the stops.
I, for one, don’t want to see them rewarded for their efforts.
Of course, there’s the other side of the argument. Perhaps they genuinely believe the Italian authorities had acted like goons with respect to their daughter.