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what had taken place during the pretrial examination phase. As a final twist, the examination phase was conducted secretly. The defense had no right to participate or even to be notified of the investigation. The new code substantially changed this process by, among other things, separating prosecutorial and judicial functions and making clearer distinctions between the trial and investigatory phases (Freccero, 1994). The reforms were also necessary because the prior procedural regime was inefficient. Some cases were delayed for over 10 years. Although efficiency does not necessarily follow from an increase in adversarial procedures, Italy adopted special procedures that have an effect similar to plea bargaining and in turn lead to speedier case disposition (Pizzi and Marafioti, 1992). Italian criminal procedure works as follows: 1) A victim reports a crime to the police. Within 48 hours, the police are required to inform the prosecutor and provide all the information that they have gathered. 2) Upon being notified by the police, the prosecutor is required to record the crime in a crime register. This record triggers time limits within which the criminal investigation must be completed—it is, in effect, a speedy trial provision. In general, the prosecutor is required to complete the investigation within six months of the initial record of the crime. A judge may grant six month extensions up to a total of 18 months. The prosecutor has the primary responsibility for investigation, although a judge serves in an oversight function, and police work is carried out under the prosecutor's direction (Pizzi and Marafioti, 1992). The new code curtails the prosecutor's ability to implement coercive measures during the investigative phase, such as lengthy pre-trial detention, restriction of a suspect's movements, house arrest, or injunction. Under the new code, the prosecutor must obtain the approval of a magistrate after a judicial proceeding prior to implementing pretrial detention. The reforms also create the position of a preliminary investigation judge separate and distinct from the prosecutor. 3) If a case is weak, the prosecutor does not have the right to refuse to prosecute. Like many civil law countries, Italy does not provide prosecutors with the discretion to decide whether or not to prosecute. A prosecutor may, however, request from a judge a judgment of dismissal, called a decreto di archiviazione. 4) A prosecutor or defense counsel may seek what in the U.S. system would be called a testimonial deposition of witnesses before trial. In Italy, it is called the incidente probatorio. The purpose of the procedure is to obtain the testimony of a witness who may not be available for the trial. 5) The new code provides for a preliminary hearing (udienza preliminare) held in camera. The judge reviews documents developed by the prosecutor during the investigation. Defense counsel participates in the hearing. No testimonial evidence
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MODEL PRACTICES IN JUDICIAL REFORM