i

Contents

WHATS SPRAY PAINT GOT TO DO WITH IT? P. Anthony Arias, Columbia University 1

AMERICAN ADVERSARIAL TRANSPLANTS IN THE ITALIAN CRIMINAL JUSTICE SYSTEM: AN ANALYSIS OF ITALIAN AND AMERICAN CRIMINAL PROCEDURE THROUGH THE AMANDA KNOX TRIAL Claire Callahan, American University 23

IN SEARCH OF A PRACTICAL PHILOSOPHY OF PUNISHMENT Samuel Datlof, Brandeis University 56

THE RIGHT TO SEXT: ANALYZING THE CONSTITUTIONALITY OF JUVENILE PRODUCTION AND TRANSMISSION OF SEXUALLY EXPLICIT MATERIALS Melissa Duncan, Ohio State University 75

THE REGULATION OF FIREARMS AFTER HELLER Alexander Fullman, University of Southern California 87

DETERRENCE AND CAPITAL PUNISHMENT: THE GREAT DEBATE Alana Joyce, Loyola University Chicago 103

ii

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iii

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Editor-in-Chief Amanda C. Lui

Executive Editors Ashley D. Burman Ashley M. Lindsey Vanessa M. Stone Juliya M. Ziskina

Editors

Moe Aoki William Aspelin

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Hannah Weaver Austin Wolfe

Leo (Yexuan) Zhang

Members

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Volume V Spring 2012 Issue III

ARTICLES

What's Spray Paint Got to Do With It?

An Analysis of Graffiti as Symbolic Speech

By P. Anthony Arias*

There have been a multitude of cases on the validity of graffiti as a protected source of expression in the United States. These various cases are suitable for analyzing the debate surrounding the legality of graffiti. This paper demonstrates the distinction between free speech and vandalism as it applies to graffiti as symbolic speech in the United States. In particular, it shows that artists have a first amendment right to produce graffiti under certain circumstances. This paper argues that graffiti should not be considered purely vandalism. This analysis is in no way intended to promote more relaxed laws against graffiti or create a potential legal framework for graffiti. Instead, it seeks to understand graffiti in the context of symbolic speech. The history of graffiti is rich, valuable, and deserves better understanding in a larger constitutional context. By analyzing the factors contributing to the success of the most important Supreme Court cases involving symbolic speech, this paper applies the Court's logic of protected symbolic speech to graffiti.

2 WULRVol V, Issue IIISpring 2012 *Paul Anthony Arias is a senior at Columbia University in the City of New York where he majored in Political Science with a concentration in Latin American and Caribbean Studies. In his free time he is a member of the Undergraduate Recruitment Committee, a head SAT instructor for the Double Discovery Center, an executive board member of the Columbia Child Rights Group, and an avid user of Netflix. After graduation, he has plans to work for a New York City law firm for two years, before eventually applying to law school.

Table of Contents INTRODUCTION 2 I: THE ORIGINS, TYPES, AND MODERN DAY PERSPECTIVES OF GRAFFITI 5 Ia. History of Graffiti 4 Ib. Proponents and Opponents of Graffiti 7 II: GRAFFITI'S PLACE IN THE LEGAL SYSTEM 9 III: COURT CASES INVOLVING GRAFFITI 13 IV: SUPREME COURT CASES AND GRAFFITI 16 IVa. Supreme Court Cases 16

IVb. Supreme Court Cases Applied to Graffiti 19

INTRODUCTION

Driving down the seawall that lines the city of Montevideo,

Uruguay, it is difficult not to be drawn to the abundance of colorful

illustrations and simple "tags"1 that are scattered across the citys

infrastructure. Indeed, from Montevideos outskirts to its

downtown city, graffiti ranging from slogans of political parties to

names of Uruguayan soccer teams can be found on statues, park

benches, city dumpsters, and even the exteriors of houses

throughout this South American city. Not all of it is political, nor is

it all pretty by any means. Outside of the many political or sports-

related expressions, the graffiti may beand often isnothing more

than a poorly scribbled word or two. It can often be obscene or

disrespectful, with curse words and verbal attacks on institutions

such as the police or the government. However, no matter how

1 The act of scribbling ones name, nickname, or some other identifying symbol.

Arias 3 insolent, libelous, or downright unsightly the tags may look, they are

legal by Uruguayan standards of free speech. This concept of free

speech as written in the Uruguayan constitution does not differ

much from that of the U.S. Constitution. The Uruguayan

constitution, in line with United States of Americas First

Amendment, explicitly provides for the freedom of speech.2

Yet, when examining an American equivalent such as New

York, it is nearly impossible not to wonder why graffiti is still so

criminalized in the U.S. when it can also serve as a powerful and

effective tool for symbolic expression as it does in Montevideo. Even

companies have used graffiti to advertise for their products. As

recently as 2005, SONY used a series of graffiti drawings in a

marketing campaign for its handheld PSP video game console.3

There have been a multitude of cases on the validity of graffiti as a

protected source of expression in the United States. By examining

2 URUGUAYAN CONST. art. 29. "It is entirely free in all matters the communication of

thoughts through words, written privately or published in the presswithout previous censorship." 3 Graffiti ads spark debate in US, BBC (Dec. 29, 2005), http://news.bbc.co.uk/2/hi/americas/4567236.stm.

Photos of graffiti in the capital of Uruguay. All photos are the property of Paul Anthony Arias, 2011. Translations from the top: El Bolso runs it, and Encouragement, my friends, for the life can be more!

4 WULRVol V, Issue IIISpring 2012 specific court cases that have pertained to symbolic speech, as well

as recent cases pertaining to graffiti, this paper analyzes the

distinction between free speech and vandalism as it applies to

graffiti as symbolic speech in the United States. In particular, it asks:

do citizens have a constitutional right to produce graffiti under the

First Amendment of the United States Constitution, and if so, under

what circumstances?

The study of graffiti is useful in the designation between

where free expression ends and vandalism begins. Graffiti itself has

garnered the attention of courts all across the United States in

response to the significant amounts of money spent on reducing its

presence in society. However, should municipal governments be

successful in their fight to eradicate graffiti, it is quite possible that

an important source of symbolic speech would be eliminated.

This paper proceeds as follows: in part one, the origins and

types of graffiti are examined, and arguments for and against graffiti

are introduced. Part two contains a discussion of current laws

regarding graffiti usage and its place in the legal system. In part

three, prior court cases pertaining to graffiti are described. Part four

provides an overview of several pertinent Supreme Court cases in

order to identify which aspects contributed to the plaintiffs

successful (or unsuccessful) protection under the First Amendment.

These various examples will illustrate that graffiti should

not be looked at purely as vandalism. When one acknowledges the

specific differences between speech and vandalism, then there exists

a definite reason for the protection of graffiti under the First

Amendment. In particular, when graffiti is legally4 placed on a

property, contains expressive political messages, and has sustained

public support, it becomes clear that individuals have a

constitutional right to create graffiti.

4 For graffiti to be legally placed, it must be done so with the permission of the owner.

Arias 5

PART I: THE ORIGINS, TYPES, AND MODERN DAY

PERSPECTIVES OF GRAFFITI

Ia. History of Graffiti

Graffiti as a concept and practice has outlasted civilizations.

The Mayans displayed street art dating back to 100 B.C.E.5 Evidence

of graffiti was also found on the preserved walls in Pompeii.6 Graffiti

as we know and observe it today in urban surroundings dates back

to a more recent decade when artists such as Steven Ogburn began

their endeavors on subway trains during the 1970s and 80s.7 The

graffiti that Ogburn, also known as Blade, created was known as

New York Style graffiti writing.8 This type of writing was defined

originally as the act of stylizing ones name in a brand-like way.9 Due

to this emphasis on the name, writing itself did not originally focus

so much on forming a background or scene so much as a brand. In

addition, throughout the same time period, much of this style of

graffiti that took place was not removed. The fame of a writer, the

person doing the graffiti, became based upon the circulation of their

graffiti. As Blade describes, You could be in the middle of a full-

court game, running up and down, but when you heard the train

coming, everybody stopped to see what pieces go by.10 The more

frequently the community saw the writings, the more popular that

graffitist became.

The tools available for graffiti have evolved throughout the

decades; modern styles such as New York-style graffiti originated

from teenagers with access to no more than permanent markers. In

the 1970s, when aerosol technology became environmentally safer,

5 Marisa A. Gomez, Note, The Writing on Our Walls: Finding Solutions Through Distinguishing Graffiti Art From Graffiti Vandalism, 26 U. OF MICH. J.L. REF. 633, 636-37 (1993). 6 George C. Stowers, Graffiti Art: An Essay Concerning the Recognition of Some Forms of Graffiti as Art, U. OF MIAMI (1997), available at http://www.graffiti.org/faq/stowers.html. 7 Richard S. Chang, An Artists Career Writ Large, with Spray Cans on Subway Trains, N. Y. TIMES, Apr. 29, 2011 at 1. 8 STOWERS, supra note 7, at 1. 9 Id. 10 Id. at 3.

6 WULRVol V, Issue IIISpring 2012 the sale of spray-paint became more popular. The increased

availability of spray-paint to teenagers led to a more advanced

graffiti movement where writers could focus on the size and color of

the artwork.11 No longer was it enough to have ones name scrawled

over any available and visible surface because everyone was doing

this.12 This technique of scribbling ones name or nickname, known

as tagging, became embodied in the overall movement of New York

City graffiti in more functional ways. These tags were not meant to

be aesthetically pleasing by any means. Instead, they were utilized

as markers of ones presence in an area and have been estimated to

account for more than eighty-five percent of a citys graffiti.13

These tags could also be taken to form another style of

graffiti often employed by gangs to signal territorial distribution or

the neighborhood news. This gang graffiti, as scholar Lori L.

Hanesworth categorizes it, could be used to mark territory, to

insult other gangs, to warn away intruders, and to eulogize their

dead.14 This form, like tags, is not considered a form of more

advanced graffiti art because it does not attempt to produce any

aesthetic effects on viewers and is often not created by experienced

artists.15

A third type of graffiti is known as a piece. A piece is

typically the size of a mural, multi-colored, and it involves original

or familiar cartoon characters in addition to the writer or graffiti

artists name.16 For these kinds of pieces the main goal is not simply

to get ones name in an area, but rather to aim for a unique style and

display of artistic talent. Graduate student George Stowers of the

University of Miami states that The goal was and is to create

11 Id. at 2. 12 Id. 13 Lori L. Hanesworth, Are They Graffiti Artists or Vandals? Should They Be Able or Caned?: A Look at the Latest Legislative Attempts to Eradicate Graffiti, 6 DEPAUL J. ART & ENT. LAW, 225, 226 (1996). 14 Id. 15 Stphanie Giry, An Odd Bird, Legal Affairs Magazine, Sept. 2002, available at http://www.legalaffairs.org/issues/September-October-2002/story_giry_sepoct2002.msp. 16 STOWERS, supra note 7, at 2.

Arias 7 pieces that stand out because of creativity, color, vibrancy, crisp

outlines and overall artistic appeal.17 Piece graffiti is employed by

graffitists who seek to create an outlet for the expression of political

or societal commentary, and who view graffiti as something that

aims to beautify what would otherwise be a desolate and neglected

sight. The essence of pieces, which aim to express and deliver

messages, is different from tags because they require a high skill set

and artistic experience. In fact, due to their general rarity, it is

estimated that pieces only account for five percent of all graffiti.18

Those who became well known for their pieces became

acknowledged as "kings and queens" of local graffiti crews.19

A critical component of all types of graffiti is its location.

One graffitist writes of the visibility of the work and about the

originality or history of the space.20 For instance, a piece that is

done on a bridge overpass is more valuable than one done on the

blacktop of an empty parking lot due to the higher volume of

observers that an overpass would have relative to the parking lot.

When graffiti is done within locations that carry a special

connotation or history such as the Freedom Tunnels in New York

City,21 it can also increase the value of the graffiti. Thus, as graffitists

pursue high visibility or historic spaces, a large portion of the

problems surrounding graffiti, regardless of how expressive or

artistic it is, becomes its placement on public and private properties.

As noted by Tomasz Rychlicki, a legal scholar on international

intellectual property law, The basic problem in the case of illegal

graffiti is the conflict between the rights of the owner of the object

and the creator himself.22 In fact, Blade himself had to confront such

17 Id. 18 HANESWORTH, supra note 14, at 227. 19 STOWERS, supra note 7, at 2. 20 Caleb Neelon, Critical Terms for Graffiti Study (2003), http://www.graffiti.org/ faq/critical_terms_sonik.html. 21 Located beneath Riverside Park, the Freedom Tunnel is an abandoned train tunnel whose walls are nearly covered in notable works of graffiti. 22 Tomasz Rychlicki, Legal Questions About Illegal Art, 3 J. OF INTELL. PROP. L. & PRAC. 399 (2008).

8 WULRVol V, Issue IIISpring 2012 a reality. He describes his transition from a graffiti artist to a gallery

artist: once he began to sell his pieces to art collectors, he was told

to not write on public property again. That was [the art collectors]

way of saying, Grow up, Blade states.23

1b. Proponents and Opponents of Graffiti

Walking through the subway station at Times Square in

New York City, and indeed any public domain, it is easy to notice

the abundance of private advertising that now occupies public

spaces of society. For instance, the station at Times Square is filled

with advertisements for television channels, liquor, Hollywood

movies, and many other products. Such public areas prime

locations for sending messages to society have been rented, which

prevents other individuals from utilizing them. Such an observation

is also pointed out by Sonia K. Katyal, a law professor at Fordham

University, who states that public spaces have become converted

into vehicles for corporate advertising.24 People are surrounded by a

market place in which only those who can pay, such as large

corporations, can participate while others, like graffiti artists, have

limited access to certain areas that are prime locations for the

expression of ideas.

Graffitists seek the same coveted spaces as private

companies, and it is along these walls and subway halls that they

often face charges of vandalism when utilizing them for graffiti.

Billboards are a prime example of a purchased area in the public

domain used for sending messages. A group, known as the Billboard

Liberation Front, seeks out billboards to alter and vandalize in an

attempt to democratize such advertisements. Although this group

does not use conventional modes of graffiti, they do seek to express

messages in the public domain much like graffitists do.25

23 CHANG, supra note 8, at 1. 24 Sonia K. Katyal, Semiotic Disobedience, 84 WASH U. L. REV. 3, 491 (2006). 25 Id. at 494.

Arias 9 Criticism of mainstream advertising is not limited to actions

by the Billboard Liberation Front. One proponent of graffiti writes,

It is, for instance, perfectly legal for Calvin Klein to install

billboards of a rail-thin female model who is adolescent in either age

or appearance. That such displays encourage anorexia, bulimia, and

statutory rape is well-documented. Cigarette and alcohol companies

can advertise their products. Their products can kill people and can

destroy families.26 Other supporters of graffiti have noted the

benefits of graffiti art as a vehicle for expression. Graffiti art,

particularly in Los Angeles, has been documented as something to

promote anti-drug sentiment in communities and to celebrate

cultural heritage, among other purposes.27 One contemporary artist,

David Choe, has utilized graffiti murals for purposes as diverse as

decorating the interior of the Facebook headquarters28 to honoring

those who have suffered abuse, such as a seventeen year old Chinese

student who was brutally beaten by six individuals in Chicago.29 To

certain graffitists, such as Blade, graffiti contributed to their ability

to gain recognition as artists.30

Opponents of graffiti cite negative consequences that occur

as a result of its usage. For instance, they suggest that the costs of

graffiti are not limited to cleaning public and private property that

has been tagged.31 Marisa Gomez of the University of Michigan Law

School, writes that in the early 1990s millions of dollars were spent

by both private and public companies in order to not only clean

graffiti, but to expand security presence in the area and purchasing

more cameras for increased surveillance.32 Many have also stated

that graffiti causes an increase in gang activity and is a sign of urban

26 NEELON, supra note 21, at 2. 27 GOMEZ, supra note 6, at 639. 28 See Katie Kindelan, Facebook IPO Turns Graffiti Artist David Choe into Multi-Millionaire, ABC NEWS (Feb. 2, 2012). 29 See Alex Maeland, David Choe Immortalizes Beat Up Chicago Teenager, HYPEBEAST (Jan. 18, 2012). 30 CHANG, supra note 8, at 3. 31 GOMEZ, supra note 3, at 653. 32 Id. at 654.

10 WULRVol V, Issue IIISpring 2012 decay.33 Opponents of graffiti also state that promoting such a form

of art only increases its misuse and therefore it should be banned

entirely, regardless of the writer's influence.34 Such an effect

occurred in April 2011 when a museum in Los Angeles promoted an

Art in the Streets exhibition, which sought to provide one of the

largest museum surveys of graffiti art.35 The exhibition led to an

influx of tagging and graffiti vandalism in the surrounding

neighborhood.36 Thus, to some opponents, such as Jack Richter of

the Los Angeles Police Department, the only way to manage the

increased cost of not only clean-up but also preemptive anti-graffiti

measures, is to stop street graffiti altogether. "As former Chief

[William J.] Bratton was fond of saying, he quoted, "'if you want to

be an artist, buy a canvas.'"37

PART II: GRAFFITI'S PLACE IN THE LEGAL SYSTEM

Blade had been warned by his agent not to place pieces on

public or private property. If he had continued to place pieces on

public property, the question remains: would there be any

circumstance under which his actions would be constitutionally

protected? The Supreme Court case of Texas v. Johnson ruled that an

individual who had broken the law by burning a flag was protected

under relevant precedent.38 The issue of graffiti is parallel to this

case. Works of graffiti on public and private property are illegal

under state laws. However, such pieces can be considered symbolic

in terms of expression just as the burning of the flag was in Johnson,

despite breaking pertinent laws. A counterargument can be made

that the Johnson case is an illogical comparison. In Johnson, the

33 Id. 34 Id. at 651. 35 Randy Kennedy, Street Art Show in Los Angeles Attracts Graffiti Nearby, N. Y. TIMES, April 15, 2011. 36 Id. 37 Martha Neil, Graffiti Exhibit in LA is Magnet for Taggers and Cops; At Least One Artist Detained, A.B.A JOURNAL (Apr. 20, 2011). 38 Texas v. Johnson, 491 U.S. 397, 402-420 (1989).

Arias 11 plaintiff had used his own flag in order to undertake his intended

action. In graffiti cases, many of the situations are not only illegal,

but on someone elses property. In order to better understand the

implication of graffiti on private and public property, it is necessary

to be familiar with graffiti and its place in the legal context.

There are a variety of tactics used by law officials in

response to graffiti vandalism. One method is punitive action, such

as criminal prosecution and penalties, including jail time for the

individuals caught trespassing or intentionally destroying

property.39 In fact, California nearly passed a paddling bill in the

early 1990s, which would have mandated that individuals caught

writing were to be subject to ten strikes by a thick, wooden

paddle.40 It never came into effect due to a separate legislative

counsel finding the action of paddling as cruel and unusual

punishment.41 Yet, as noted by Gomez, criminal prosecution is

difficult as the judicial system may often be crowded with more

serious crimes, overcrowded jails, and a belief in the moral goodness

of the young violators.42 Therefore, graffitists are not commonly

incarcerated.

An alternative penalty for combating graffiti is community

service in the form of graffiti clean-up.43 Community service is

beneficial to the state because it lessens the financial burden of anti-

graffiti enforcement because a perpetrator handles the responsibility

of cleaning.44 It is also more useful as a legal resource as judges are

more likely to impose this type of sentence on violators. Municipal

governments may also resort to a third measure: passing laws that

would prohibit the sale of spray paint to minors, or determining

where felt tip markers can be located within a store, such as

39 GOMEZ, supra note 6, at 658. 40 HANESWORTH, supra note 14, at 232. 41 Conroy Wants Paddle Opinion Reconsidered, 1994 LOS ANGELES TIMES [SACRAMENTO], June 28, 1994. 42 GOMEZ, supra note 6, 659. 43 Id. at 666. 44 Id. at 667.

12 WULRVol V, Issue IIISpring 2012 whether these items are behind locked glass or in open view.45

Governments have not exclusively taken these measures, but they

are the most common.46

Regardless of the methods used in an anti-graffiti campaign,

the question of whether graffiti has any source of protection under

the current legal system can be addressed. Michelle Bougdanos, an

associate at the United States Security and Exchange Commission in

Florida, attempts to address this question by creating a hypothetical

case involving a complex scenario.47 In this scenario, a highly

talented graffiti artist, John Sol, has taken it upon himself to create a

piece on an abandoned building. After seeking out the records for

the owner of the building to receive permission for the mural, Sol

cannot find any records for the owner of the site. Despite this

setback, Sol continues with the graffiti mural, which depicts an

image emphasizing the importance of education and an anti-drug

statement. The mural, after being completed, is highly praised by the

community. However, after several years have passed, the building

becomes part of the governments reurbanization project and thus

the government intends to destroy the building as well as the mural.

After Sol raises a complaint, the local officials refuse to preserve the

art, and threaten him with charges of vandalism for illegally placing

graffiti on the building. Sol sues the government under the Visual

Artists Rights Act (VARA) to protect his work. To receive the

protection of VARA, Sol must demonstrate that his mural is both a

work of visual art, and that it has recognized stature.48

According to US copyright law, visual art as defined by

United States Code in Title 17 Chapter 1 101 is a painting, drawing,

print, or sculpture, existing in a single copy, in a limited edition of

200 copies or fewer numbered by the author and bear the

45 Id. at 675. 46 Id. at 668. 47 Michelle Boudagnos, Note, The Visual Rights Act and Its Application to Graffiti Murals: Whose Wall Is It Anyway, 18 N.Y.L. SCH. J. HUM. RTS. 549-550 (2002). 48 Subject Matter and Scope of Copyright 101-106, 17 U.S.C. (1991).

Arias 13 signature or other identifying mark of the author.49 To fill the

second requirement of recognized stature, a piece must be

considered worthy of merit and recognized by surrounding

community individuals as a qualitative contribution to society.

The other significant factor in regards to whether Sols

graffiti warrants protection is its location. Due to the often-

controversial locations that graffitists choose for their art, the divide

between vandalism and artistic expression becomes difficult to

distinguish. However, VARA technically classifies a graffiti mural as

visual art and can override the constitutional rights of a property

owner to a certain extent. As explained by Bougdanos, VARA

requires that "the owner of a building which contains visual art

must respect the moral rights of the artists; the VARA infringes

upon the constitutionally granted property rights of the owner.50

These moral rights, which make damage to the artwork the

equivalent of damage to the individuals reputation, prevent a

distortion, mutilation, or other modification of the work which

would be prejudicial to his or her honor or reputation.51 Yet, this

protection only applies for works that were commissioned and not

illegally placed without the knowledge or consent of the owner of

the property. Such a requirement is explicitly highlighted under

New York administrative law as written: "No person shall write,

paint or draw any inscription, figure or mark or affix, attach or place

by whatever means a sticker or decal of any type on any public or

private building unless the express permission of the owner or

operator of the property has been obtained."52

Indeed, the definition of visual art in the US Code may be

construed to extend to graffiti art, such as that of Sols, especially

when such an emphasis is put on the requirement that the work be

signed and claimed by the author of the piece. The second

49 Id. 50 BOUGDANOS, supra note 48, at 557. 51 Id. at 556.

52 N.Y. ADC. LAW 10-117: NY Code - Section 10-117 [hereinafter N.Y. ADC LAW].

14 WULRVol V, Issue IIISpring 2012 requirement of recognized stature is not a difficult test for Sol to

pass either, since his work was highly appreciated in the community.

However, Sols actual trouble in guaranteeing protection for his

graffiti mural begins with the location of the piece. In his case, since

his work was placed illegally on the building, it is highly unlikely

that the courts would rule in his favor.53 In fact, he is fortunate that

the local law enforcement officials have not gone through with their

charges of vandalism. Although Sols scenario is hypothetical, there

are a variety of cases that can be analyzed in order to verify whether

his case translates from theory to practice.

PART III: COURT CASES INVOLVING GRAFFITI

Recently, the case of Vincenty v. Bloomberg considered graffiti's

place in society in the context of freedom of speech.54 In this case, a

group of high school and college students sued New York City for

its Administrative Code 10-117(c) and (c-1).55 Under this

legislative action, the sale of aerosol spray paint containers and

broad-tipped indelible markers would be banned to anyone between

the ages of eighteen and twenty-one.56 Under the provision, violators

would have been given:

A misdemeanor punishable by a fine of up to $500 and/or imprisonment for up to three months; a second or successive violation of the provision is a Class A misdemeanor punishable by a fine of up to $1,000 and/or imprisonment for up to one year.57

The defendant, New York City, admitted to enacting such

legislation in an effort to continue its anti-graffiti campaign and to

combat the widespread problem of the unauthorized placement

53 Id. 54 Vincenty v. Bloomberg, 476 F.3d 74, 89 (2d Cir. 2007). 55 N.Y. ADC. LAW, supra note 53. 56 Vincenty, 476 F.3d at 89. 57 Id. at 15.

Arias 15 of graffiti on the property of another.58 The plaintiffs argued that

such a provision was unconstitutional because it both restricted

their first amendment rights to free expression, and also violated the

right to equal protection of the individuals because it targeted a

specific age group in its provision. During the testimony, the

defendants argued that the legislation was narrowly tailored" in

that it aimed at only certain part of the population, and content

neutral because it did not proscribe any freedom of expression, but

only the unlawful graffiti itself.59 They then expressed that graffiti

was a substantial problem, supported by the fact that six thousand

individuals were arrested for graffiti vandalism between 2003 and

2006.60 Furthermore, they stated that between 2002 and 2005 the

city had cleaned graffiti from 67 million square feet of property.61 By

enacting this legislation, the city only aimed to reduce the amount of

crime in the city and therefore it was in the government's interest to

enact such a provision.

One of the plaintiffs, Lindsey Vincenty, then a college

student studying the visual arts, remarked that not being able to use

such instruments limited his ability to express herself in her classes.

She emphasized the distinct qualities of spray paint as a tool and

contended, Spray paint covers differently than other paints applied

with a brush, such as mists, fades and blends. It dries faster, so I can

layer more quickly.62 The plaintiffs also argued that even

illegalizing the possession of certain artistic tools would cause art

students or individuals interested in art to be at risk of violating the

law since they would have to be in possession of the items to and

from school and home.63

58 Id. at 1. 59 Id. at 31. Defendants argued that 10-117(c) and (c-1) are content neutral, do not proscribe any First Amendment activity, and are narrowly tailored responses to the problem of unlawful graffiti and to the experience that 15-20% of the persons violating the anti-graffiti provisions were 18-20 years of age." 60 Id. at 30. 61 Id. at 29. 62 Id. at 19. 63 Id. at 7.

16 WULRVol V, Issue IIISpring 2012 Ultimately, the judge sided with the plaintiffs, ruling that

the law did indeed violate the first amendment rights of Vincenty et

al.64 Shortly after, New York City appealed, contending that the

court had not developed a valid explanation in regard to how the

plaintiffs had established a likelihood of success on the merits of

their first amendment and equal protection claims. The successive

judgment in the appeals case sought to further scrutinize the narrow

tailoring dynamic of the court case. The Court of Appeals wrote,

Narrow tailoring in this context requires, in other words, that the

means chosen do not burden substantially more speech than is

necessary to further the government's legitimate interests. 65 On

these grounds, the original ruling was affirmed in the Court of

Appeals, because the court maintained that the regulation would

restrict the first amendment freedoms of too many individuals in the

effort to stop an isolated group of perpetrators.

Additionally, English v B.F.C. & R. East 11th Street LLC is a case that

directly involves a graffiti piece placed on the walls of a privately

owned building.66 The English case involved five separate graffiti

murals done by six different artists surrounding an emptied

community garden. After the graffiti was created, the garden lot

soon became commissioned as the new spot for the construction of a

building for the city. The artists petitioned under the Visual Artists

Rights Act of 1990 and declared that construction in the area would

be illegal because it would result in the obstruction of a work that

the artist had the moral rights to.67 Moral rights are defined under

the requirement that the art is personal to the authors, and as such,

viable, separate, and apart from the proprietary aspects. 68 Under

that definition, even if the author was not entitled to the economic

rights of the art, any damage to it would be prejudicial to the artists

64 Id. at 35. 65 Id. at 19. 66 English v. CFC & R East 11th Street LLC, No. 97 Civ. 7446, 1997 WL 746444 (S.D.N.Y. 1997), affd, 198 F.3d 233 (2d Cir. 1999). 67 See 17 U.S.C. 101, 106A (1991). 68 BOUGDANOS, supra note 48, at 555.

Arias 17 reputation. Ultimately, despite the protection of the graffiti murals

under VARA, the Court still found that VARA was inapplicable

because the murals had been illegally placed without the knowledge

or consent of the owners of the buildings. This case highlights the

importance of property ownership and obtaining the respective

owners permission before pursuing an act of graffiti, regardless of

how expressive or symbolic it may be under the First Amendment.69

Another case that directly involves the placement of a

graffiti mural is that of Hanrahan v. Ramirez.70 In this case, a liquor

store owner was sued for painting over a mural done by Hanrahan

and several children in the neighborhood. The owner painted over

the display in order to create an advertisement for the store.71

Hanrahan sued under the auspices of VARA, stating that the

artwork, which had received an award and considerable community

support, was of recognized stature, a necessary requirement for

VARAs protection. He argued that the mural therefore could not be

damaged without the artists consent. The judge ruled in favor of

Hanrahan and the mural was soon restored. Permission of the owner

is crucial when seeking protection under VARA as confirmed English

v. B.F.C. & R. East 11th Street LLC. However, Hanrahan v. Ramirez

illustrates the potential for community support and approval to

override such a requirement through garnering recognized stature.

PART IV: SUPREME COURT CASES AND GRAFFITI

IVa. Supreme Court Cases

Although the hypothetical case of Sol and the actual case of

English did not successfully receive protection through VARA, it

could still be considered whether the outcomes would have been

different if the individuals had sought protection through the First

Amendment. Under the First Amendment of the United States,

69 Id. at 563. 70 Hanrahan v. Ramirez, No. 97-CV-7470 (C.D. Cal. June 3 1998). 71 Id. at 564.

18 WULRVol V, Issue IIISpring 2012 Congress cannot pass any law that restricts or abridges freedom of

speech,72 but that does not mean that any individual's speech or

actions are completely unrestricted. This principle has been aptly

demonstrated in the Supreme Court case of United States v. O'Brien.73

OBrien, after burning his draft card in an attempt to speak out

against the Vietnam War, was still found to have committed a

criminal act despite the Court's acknowledgment that he engaged in

symbolic speech by burning the draft card. Similarly, graffiti, which

is a form of expression in which writers choose to express

themselves through actions rather than words falls under the same

classification of symbolic speech as burning the draft card in United

States v. OBrien.74

The majority opinion in the O'Brien case, wary of

putting limitations on symbolic speech, stated that such speech

could be regulated under the conditions that: the regulations were

promoting a vital government interest, the regulation was not done

to directly limit free speech, and most importantly, that the

incidental restriction on alleged First Amendment freedoms is no

greater than is essential to the furtherance of that interest.75

In Spence v. Washington, the appellant was a college

student who had been arrested for improper use of the United States

flag after hanging it upside down from the window of his home with

a peace symbol taped to it.76 Spence fought the states conviction,

invasion of Cambodia and the contending that he was protesting the

, which had occurred only a few Kent State University killings at

days before.77 The Supreme Court applied and modified the

by developing certain . They did socase OBrienprecedent from the

criteria to determine more specifically which instances of symbolic

speech were to be afforded protection under the First Amendment, a

72 U.S. CONST. amend. I. 73 United States v. OBrien, 391 U.S. 367 (1968). 74 HANESWORTH, supra note 14, at 229. 75 OBrien, 391 U.S. 367. 76 Spence v. Washington, 418 U.S. 405 (1974). 77 Id. at 9.

Arias 19 set of guidelines ultimately becoming known as the "Spence test."78

As Hanesworth explains in regards to the standards of such a test,

the conduct must have (1) the intent to convey a particularized

message and (2) the likelihood must be great that this message

would be understood by those who viewed it.79

In addition to clarifying what motivations or intent might

constitute graffiti as symbolic speech under the First Amendment,

the Spence case also provides an understanding of graffitis place in

the context of the First Amendment, especially in regards to its

location on public or private property. In Spence, the appellant had

placed a flag upside down with a peace symbol taped to it outside of

his property. The flag was his private property and he only chose to

display his symbol directly outside of his apartment.80 When

arriving at a decision on whether or not his speech was protected

under the First Amendment, the Court stated the following:

A number of factors are important in the instant case. First, this was a privately owned flag. In a technical property sense, it was not the property of any government. We have no doubt that the State or National Governments constitutionally may forbid anyone from mishandling in any manner a flag that is public property. But this is a different case. Second, appellant displayed his flag on private property. He engaged in no trespass or disorderly conduct. Nor is this a case that might be analyzed in terms of reasonable time, place, or manner restraints on access to a public area. 81

This aspect of privately owned versus publicly owned is

raised again as an issue in another Supreme Court case, United States v.

78 Id. at 13. 79 HANESWORTH, supra note 14, at 229. 80 Spence, 418 U.S. 405. 81 Id.

20 WULRVol V, Issue IIISpring 2012

Eichman. 82 In this case, the defendant had burned an American flag in

Washington after the passage of the Flag Protection Act of 1989,

which prohibited such behavior even as a means of expression. The

Court found the appellees prosecution of the defendant

inconsistent with the First Amendment. However, it specifically

acknowledged the importance of the property used for expression

being privately owned when it mentioned, in reference to Spence, that

a governments interest in protecting publicly owned flags might

justify special measures on their behalf.83 In public realms, these

special measures include, but are not limited to, government

property being constitutionally protected or the need of the

government to prevent disorderly conduct or trespassing. Thus, the

restrictions of expression in public are more severe than when

symbolic expression occurs with or on private property.

As both Spence and Eichman demonstrate, judges have placed

a strong emphasis on the fact that the form of expression was done

on ones own private property and with his or her own flag. This

focus indicates that had Spence or Eichman chosen to express

themselves on public property or with a publicly owned flag, then

the Supreme Court may not have ruled in their favor. By focusing on

such a distinction in these cases, the Court has repeatedly made it

clear that when a person expresses his or herself in a public setting

using his or her own private property, then such acts of expression

have a higher likelihood of protection under the First Amendment.

Furthermore, the content of the plaintiffs' message is also

pivotal in determining whether expression is protected or not. A

deeper analysis of Spence leads to the conclusion that political

expression is a crucial component in gaining the support of the

majority of Supreme Court judges. In Spence, the appellant had

specifically altered the flag not in order to beautify it, but to express

his concern with Americas invasion of Cambodia and the Chicago-

82 United States v. Eichman, 496 U.S. 310 (1990). 83 Id.

Arias 21

Kent killings. Spence is not the only case in which political

expression was crucial to the acts protection as symbolic speech. In

Texas v. Johnson, Johnson had burned the flag in order to protest to the

policies of the Reagan administration and several corporations in the

Dallas area.84 Such an emphasis on political speech indicates that

political expression is an integral factor in ascertaining First

Amendment protection.

IVb. Supreme Court Cases Applied to Graffiti

As seen in the above cases, free speech is not absolute, and

contextual circumstances are essential in determining the outcomes

of rulings. This necessitates that the protection of an individuals

right to produce graffiti is carefully balanced against existing

criminal laws. Hanesworth estimates that nearly five percent of all

graffiti are pieces, which have an immense potential to serve as

outlets for expression or community enrichment.85 The law should

ensure that these categories of graffiti that might be seeking to

create forums for political issues are not prosecuted and eliminated

under the singular category of graffiti vandalism. This specific type

of expression, especially if political, is protected under the First

Amendments guarantee of symbolic speech.

Although the Vincenty case does not directly involve a case of

graffiti, it provides useful insight into graffitis place in the context

of the guidelines established by the Supreme Court cases discussed.

In Vincenty, the Court continuously upheld the importance of

expression that graffiti allows. In line with the OBrien ruling,

Vincenty also established a basis for the regulation of the visual arts in

that a law cannot substantially restrict symbolic speech for the sake

of a governmental interest.

84 Texas v. Johnson, 491 U.S. 397 (1989). "Johnson burned an American flag as partindeed, as the culminationof a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President." 85 HANESWORTH, supra note 14, at 227.

22 WULRVol V, Issue IIISpring 2012

As demonstrated by the Hanrahan case, the recognition of

graffiti as a form of expression has the ability to infringe on the

property rights of another owner. However, Hanrahan is different

from English because the artist in Hanrahan had specifically been

given permission by the owner of the property to create a graffiti

piece on the side of the building, whereas in English, the artist was

not. Furthermore, the graffiti mural in Hanrahan had recognized

stature; it had been given an award and was largely supported by the

community. In such a case, the graffiti piece as a message becomes

more valuable to the community than the physical worth of any

property.86 With such a concept in mind, there are instances when

graffiti has the right to be kept on a property that is not the artists.

However, it must fulfill the requirements that it was legally placed

on the property, that it has recognized stature, and possibly that it is

political in nature. Thus, graffiti in and of itself, since it has the

potential to be political with recognized stature in the community,

is a form of expression that individuals have the constitutional right

to engage in.

86 BOUGDANOS, supra note 48, at 564.

American Adversarial Transplants in the Italian Criminal Justice

System: An Analysis of Italian and American

Criminal Procedure through the Amanda Knox Trial

By Claire Callahan*

Throughout the past century, the Italian criminal justice system has been accused of corruption namely from excessive uses of judicial power. This article analyzes the current Italian criminal code enacted in 1988 vis vis American criminal procedure focusing on the role of the judge. This comparison is valuable because the new Italian code of criminal procedure incorporated several adversarial procedures modeled after the American adversarial model. The current Italian criminal code marks the first time in history that adversarial procedure and has been incorporated into a traditionally inquisitorial justice system. Despite these recent reforms, however, the conviction of American exchange student, Amanda Knox, in 2009 invited the western world to scrutinize the state of the Italian criminal justice system more than ever before. In order to provide an understanding of Italian law and the complexities of the Knox trials, this article investigates the differences between the American adversarial model and the reformed Italian criminal procedure. The culmination of this analysis reveals that despite Italy's efforts to model the new code off of the American system, Italy's inquisitorial roots are still firmly implanted in its

24 WULRVol V, Issue IIISpring 2012

criminal procedure which is evident through the powers the judges have retained.

*Claire Callahan is an award-winning honors scholar and a senior majoring in Law and Society at American University. Originally from Mukilteo, Washington, Claire first discovered her interest for European civil law while studying abroad in France in 2007, during which time Amanda Knox was arrested in Perugia, Italy. She presented her research on the Knox trials at the School of Public Affairs fifth annual Undergraduate Research Symposium in April at American University. Claire currently resides in Washington, DC and plans to work as a paralegal upon graduation before attending law school.

Table of Contents

INTRODUCTION 24 I: THE ITALIAN CRIMINAL JUSTICE PROCEDURE 26 Ia. Fallout of the Rocco Code 26 Ib. The Preliminary Investigation 28 Ic. The Preliminary Hearing 31 Id. Pretrial Preparation: Plea Bargaining and Fast Track Trial 34 Ie. The Trial Phase: Jury Selection 37 If. Admissibility of Evidence 39 Ig. The Trial 42 Ih. The Appeals Process: Trial de novo 44 Ii. The Adversarial Reforms 46 II: THE AMANDA KNOX TRIAL AND THE INFLUENCE OF JUDICIAL POWER 47 IIa. Background of the Trial 49 IIb. Criticisms of the Trial 49 IIbi. Preliminary Hearing: Plea Bargaining 50 IIbii. Preparing for Trial: Jury Selection 51 IIbiii. Admissibility of Evidence 51 IIbiv. The Trial 51 CONCLUSION 52

Callahan 25

INTRODUCTION

The Amanda Knox trial captured the attention of the

Western world when the young college exchange student was

accused of murder in Perugia, Italy in 2008. What makes this case

fascinating is not the grisly details of her roommate Meredith

Kerchers death; but rather the differences in law and procedure

Knox encountered in the Italian criminal court system. Surprisingly,

although the current Italian code of criminal procedure, known as

the Codice di procedura penale (hereinafter referred to as the CPP), has

many adversarial components, it is hardly identical to American

criminal procedure in practice. This is largely due to the impressive

power Italian judges have traditionally enjoyed under Italian law.

In order to understand the friction between the Italian and

American systems regarding judicial powers, this essay will divide

the analysis of the Italian criminal justice system into two parts:

Part I will analyze the history of the Italian criminal justice

procedure and the rise of the CPP out of the former Rocco Code of

1930. It will then critique some of the changes the CPP has made to

improve the image of the Italian justice system focusing on the

rights granted to the defendant in the preliminary hearing, the new

responsibilities bestowed upon the prosecution and defense in the

pretrial phase (including jury selection and the rules of

admissibility of evidence), the judges role during the trial, and

finally the appeals process. It is here that the problems, which arise

from the judicial powers that persist from the Rocco Code, will be

discussed in detail. Part II will investigate the Amanda Knox trial

as an example of the miscarriages of justice that may result from the

powers that Italian judges still retain from the former criminal code.

The culmination of this analysis will reveal how differently

Knoxs case was handled in the Italian system and how that

difference is due in large part to the greater powers the judge

possesses under Italian law. As the purpose of these

adversarial procedures is in many ways inconsistent with Italys

26 WULRVol V, Issue IIISpring 2012 traditional civil law values, the reforms only result in superficial

regulations that are not always respected in practice in cases such

as the Knox trial. The application of these aforementioned

procedures in both criminal justice systems will reveal that Italy

has purposely adopted many American adversarial procedures to

remedy judicial corruption. However, it will also prove that the

nations attachment to greater judicial power through its civil law

tradition impedes Italian courts from performing these procedures

as they were designed to operate in the American system.

PART I: THE ITALIAN CRIMINAL JUSTICE PROCEDURE

Ia. Fallout of the Rocco Code

Before delving into an analysis of the Knox trials, it is first

critical to assess the different applications of criminal justice

procedure between Italy and the United States. This analysis will

provide a necessary foundation to understanding the complex

elements of the way the courts handled Knoxs case in Italy. The

strongest influence over Italys justice system that makes it so

different from the American adversarial model is its unique

historical background that stems from the Rocco Code of 1930. The

current Italian criminal code is relatively young compared to the

American criminal justice system. Before the Italian parliament

adopted the CPP in 1988, the Rocco Code prevailed for over fifty

years. While not overtly fascist,1 the Rocco Code did bestow

greater powers on the judiciary rather than the opposing parties or

the defendant on trial. In fact, the Rocco Code did not provide

defendants many rights at all, least of all the right to counsel or the

ability to question evidence brought against him. Minister of

1 Peter Neville, Mussolini (Historical Biographies) 74 (2003) (Alfred Rocco was appointed the Minister of Justice under Benito Mussolinis fascist leadership. While Rocco drafted many repressive pieces of legislation that undercut individual liberties in order to strengthen state authority during Mussolinis regime; the Rocco Code left most legal provisions intact. Still, the spirit of state power over the individual persisted in the Rocco Code, leaving many defendants defenseless against abuses of judicial power.).

Callahan 27

Justice Alfred Rocco, the drafter, rationalized that justice could

best be preserved by those deemed most knowledgeable and

trustworthy by the state the judges.2

However, many people considered the trials conducted

under the Rocco Code to be mere confirmations of the judges

suspicions raised during the investigation instead of an impartial

quest to discover the truth.3 Not surprisingly, the European Court

of Human Rights denounced the Rocco Code for its abuses of

judicial power. The Court specifically criticized the provisions in

the code that resulted in excessive delays in scheduling preliminary

hearings, the powerless position in which it placed the defendant,

and the unchecked power of Italian judges. These judges wielded

great influence over cases in their dual post as fact finders and the

sole triers of fact in each case. Therefore, with no provisions in

place to check judicial power or provide the defendant adequate

protection, corruption flourished under the Rocco Code.

Influenced by this sustained international criticism, the

Italian parliament enacted the New Criminal Code4 (CPP) into law

on September 22nd, 1988. A series of cases5 led the justices of the

Italian Constitutional Court to finally rule that defendants require

more protections in court, including the right to counsel.6 Italian

2 NEVILLE, supra note 1, at 74.

3 Elisabetta Grande, Italian Criminal Justice, 48.2 AM. J. COMP. L. 227, 227-259 (2000) (Historically, the European Court of Human Rights has adamantly critiqued the Italian justice system calling it dysfunctional and corrupted by superficial reforms. Legal scholar, Elisabetta Grande, provides an excellent detailed analysis of the criticisms and reforms of the Italian criminal justice system in her article, Italian Criminal Justice.). 4 Alassandra Gualazzi, Notes on the Italian Criminal Procedure Code, Urbino University (Oct. 12 2011), http://www.law.cam.ac.uk/faculty-resources/summary/notes-on-the-italian-criminal-procedure-code/6369 (Due to the fall of the fascist regime, it became necessary to make certain changes to the criminal code. The current code of criminal procedure also adopted many adversarial qualities in order to grant defendants more rights and representation that were not made available in the previous inquisitorial system). 5 See GRANDE, supra note 3, at 227-259 (Before the adoption of the CPP, the public prosecutor and the trial judge held substantial power over the fate of the defendant under the Rocco Code of 1930. It was not until the Italian Constitutional Court ruled that the defendant should have the right to participate in the pretrial procedure in a series of cases between 1965 and 1972 that the defendant finally emerged from the shadows of the prison cell into the courtroom). 6 See id. (However at this stage it was mostly just during the pretrial procedure).

28 WULRVol V, Issue IIISpring 2012 legislatures spent the next thirty years drafting the CPP to fully

resolve the problems that plagued the Rocco Code. During this

time, legislatures looked to the American criminal justice system as

a model for their reforms.7 But because aspects of the Rocco Code

are still so deeply embedded into their judicial structure, modern

day Italian judges struggle to maintain their power while

attempting to conform to the new regulations.

Ib. The Preliminary Investigation

Among the transplants that the Italian parliament

incorporated from the American adversarial model was the

shortened length of the preliminary investigation process.8 In an

attempt to remedy the imbalance of power between the judge and

the defendant under the Rocco Code the CPP now restricts the

freedom judges have to extend these investigations. In the US, the

sixth amendment of the Constitution stipulates that a defendant

will enjoy the right to a speedy and public trial.9 As such, there

are time constraints in place for preliminary investigations so that a

suspect is not held too long before being formally charged at the

preliminary hearing or arraignment. This time constraint, though

able to be extended in some cases, insures that the judge does not

have limitless power to delay a defendants case, which could be

detrimental to the preservation of invaluable exculpatory evidence.

Under the Rocco Code, suspects were not afforded this

privilege. Instead, the code left scheduling preliminary hearings to

7 William T. Pizzi & Luca Marafioti, The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation, 17 YALE J. INTL. 1, 3 (1992); See generally INTRODUCTION TO ITALIAN LAW (Jeffrey S. Lena & Ugo Mattei eds., 2002); THOMAS GLYN WATKINS, THE ITALIAN LEGAL TRADITION (1997). 8 Alan Watson, Legal Transplants: An Approach to Comparative Law 14 (2003) (Legal transplants are procedures of law that aremoved from one legal system to another. In this instance, I use the term to refer to those legal procedures that Italy adopted from the American model into the CPP). 9 U.S. CONST. amend. VI. (Professor Amar has criticized violations of speedy trial and

argues for violation remedies); See Akhil Reed Amar, Foreword: Sixth Amendment First Principles, 84 GEO. L.J. 641, 674-77 (1996).

Callahan 29

judicial discretion. This practice originated from Italys civil law

tradition that required the judge to compile all relevant information

in a case into a case dossier for judicial review. The judge would

spend long periods of time compiling the evidence alongside the

prosecutor before reviewing the case at the preliminary hearing.

Consequently, suspects notoriously endured up to a ten-year delay

before they were finally given a preliminary hearing. And despite

attempts to reform this procedure, it is clear that judges still have

considerable discretion under the new CPP. The current code

stipulates that the public prosecutor must finish the preliminary

investigation within six months after the initial arrest. The goal of

this reform is to improve the efficiency of the case review process

because the Italians learned that too long of a wait resulted in

unmanageable case backup and the loss of valuable testimony. As

such, the CPP attempts to emulate the American speedy trial

procedure for criminals with this pretrial investigatory time limit.

However, the prosecutor may file for an extension of up to eighteen

months to two years, particularly in extreme cases.10

While this is a far cry from the decade long delays

defendants endured under the Rocco Code, defendants today still

risk having to wait over a year to be formally charged. Once the

preliminary investigation is closed, a decision must be made about

whether there is enough evidence to proceed to press charges

against the suspect. It is in this stage that the Italian and American

systems differ greatly in terms of who has the power to proceed

with these charges. While the American prosecutor has discretion

over whether or not to move forward with a case, it is the

supervising judge (gip) who makes this decision under Italian law.

This is a prime example of how much more power judges have in

the Italian system. The prosecution still spearheads the effort to

10 See GRANDE, supra note 3, at 233 (All evidence obtained after the preliminary investigation is terminated is excluded from the case and cannot be used in trial).

30 WULRVol V, Issue IIISpring 2012

collect evidence into a case dossier, but the gip may intervene11

during the investigation and compel the prosecutor to continue an

investigation even if the prosecutor does not believe there is enough

credible evidence to support the charges.12 Conversely, American

prosecutors have much more flexibility over which cases they will

pursue. The fact that the prosecution has the power to proceed

with or terminate an investigation is characteristic of the party-

driven accusatorial system. As the American prosecution has the

sole burden of proof in criminal cases, they must be absolutely

certain that there is enough evidence to substantiate their claims in

court. If they cannot meet the demands of this burden, they have no

other option but to release the accused and pursue other suspects.

But since it is the gip, not the Italian prosecutor who makes this

decision in the Italian system, the supervising judge assumes

greater power over the decision to continue a case.

The practice of judicial intervention demonstrates the

residual power that the judge still retains from the Italian

inquisitorial tradition. Under the old code, the gip (then known as

the instructor judge13) and the prosecutor worked together to

collect evidence against a suspect. The two parties actually had to

collect both incriminating and exculpatory evidence because the

suspect did not enjoy the right to his own defense counsel. Clearly,

Italian judges are having a difficult time completely abandoning

their previous post as fact-finders alongside the prosecution under

the new code. The fact that gips retain the power to command the

prosecution to continue an investigation or press formal charges

against a suspect shows that although Italian and American

11

GRANDE, supra note 3, at 234 (Sometimes the judge may intervene on behalf of the victim or the victims family to order the prosecutor to continue investigating a suspect even if the prosecutor does not believe there is enough evidence to substantiate the charges). 12 Id. 13

GRANDE, supra note 3, at 241 (At the preliminary hearing, the supervisory gip no longer rules on the case. The case is reviewed by the giudice delludienza preliminare or gup. This judge actually presides over the preliminary hearing and decides whether or not to send the case to trial).

Callahan 31

prosecutors are charged with similar duties, in practice American

prosecutors have more discretion over preliminary investigations

than do Italian prosecutors. Similarly, Italian judges reserve more

control over the prosecution than American judges who have no

power to order the prosecution to continue an investigation.

Ic. The Preliminary Hearing

The subsequent stage of criminal justice procedure that the

CPP reformed was the preliminary hearing. The preliminary

hearing was formerly a unilateral procedure under the Rocco Code

wherein only the judge (gup) and the prosecutor were allowed to

present evidence. The current Italian preliminary hearing, however,

takes the form of an adversarial structure. Much like the American

preliminary hearing, the CPP provides the defendant the right to

counsel and grants him the opportunity to counter the

prosecutions arguments and question evidence. The goal of this

reform was to give greater protection to the defendant which

would make him less vulnerable to excessive judicial power.

At face value, the preliminary hearing phase of the criminal

justice system in the US and Italy appears to be similar, however,

the problem is that Italian preliminary hearings are quite different

in practice. Under the U.S. Federal Rules of Criminal Procedure,

defendants have the right to waive the preliminary hearing or to be

heard before a judge14 or, in some cases, to be heard before a grand

jury15 of sixteen to twenty-three of their peers. This body of jurors

14 This process is also known as an arraignment in some jurisdictions. 15 See Federal Rules Criminal Procedure Rule 6. The Grand Jury, CORNELL UNIVERSITY LAW SCHOOL, www.law.cornell.edu/rules/frcrmp/rule_6 (According to Rule 6 of the Federal Rules of Criminal Procedure. Twelve jurors must come to an agreement in order for an indictment to be issued. Currently, only about half of the states within the US practice grand jury indictment hearings while the rest of the states retain provisions but do not regularly employ them. This is because grand juries or are only required for federal criminal cases pursuant to the Fifth Amendment and they have not been incorporated into the Fourteenth Amendment to apply uniformly to all of the states [U.S. CONST. amend. V]. And although the judge instructs the grand jury about the laws at hand, the decision to issue an indictment is made by the jury alone. This, many believe, gives

32 WULRVol V, Issue IIISpring 2012 is like a peoples panel which redistributes the traditional power

the judge and the government have back to the community. The

prosecution then presents the evidence and it is up to the judge or

grand jury to decide whether there is enough evidence to proceed

with a trial. In order for the judge or jury to make this decision, the

prosecution must present the evidence collected to give the judge

or grand jury reasonable suspicion that the defendant committed

the crime. At this stage, the prosecutor does not need to prove the

defendants guilt beyond a reasonable doubt as he is charged to do

in an actual trial. He need only convince the judge or grand jury

that there is enough evidence against the accused to prove probable

cause. The accused then has the right to a defense counsel to

respond to the prosecutions evidence. It is important to note,

however, that while the accused enjoys this right to counsel at

hearings before a judge in the US, he does not have a right to

counsel before a grand jury.16 This means that in preliminary

hearings the prosecution may present all incriminating evidence to

a grand jury without defense counsel present. If after all of the

evidence has been presented the judge or grand jury decides there is

enough evidence to support the prosecutions claims, the suspect

becomes a defendant and is officially charged.17

The Italian preliminary hearing procedure has a similar

adversarial party structure. The prosecution presents all of the

evidence in the form of a case dossier. In turn, the defense is given a

copy to review before the hearing. At the actual hearing the gup

reviews the prosecutions evidence and the defense counsels

more power to the average citizen than the judge, resulting in a procedure that is exemplary of the spirit of American individualism and the publics historical distrust of government control. In Knoxs case, her pretrial hearing was ruled upon by a judge, Paolo Micheli, instead of a grand jury, which would have been available to her in the US. The absence of a grand jury in her case exemplifies Italys resistance to relinquish the judges power to the people). 16 Coleman v. Alabama, 399 U.S. 1 (1970). 17 Provisions of the Code of Criminal Procedure will be cited in the Article using the standard Italian reference for the Code which is C.p.p. (an abbreviation for Codice di Procedura Penale) followed by the article number of the Code being discussed. C.P.P. art. 405.

Callahan 33

counter arguments. At this time the defendant may request an

interrogation to challenge each of the prosecutions arguments. If

the case goes to trial, the interrogation at the preliminary hearing

can be submitted as evidence pursuant to Article 514 of the CPP. A

debate thus ensues between the two parties resulting in the gups

ultimate decision to continue or drop the case. This judicial power,

unchecked by a community body like the grand jury in the US,

demonstrates the greater capacities the Italian criminal justice

system allots its judges.

Because of this difference in judicial power, it is clear that

the Italian and American preliminary proceedings are not truly as

identical as they would appear. For one, the Italian preliminary

hearing is primarily based on documents18 rather than the

prosecutions oral testimony. This is a definite nod to the

inquisitorial tradition wherein all information in a case is compiled

into a dossier for final judicial review at trial. This is an important

representation of judicial power as the judges reliance on this

written testimony does not provide the parties much room to

expand and interpret the evidence for the court. Oral testimony is

essential to the adversarial system because it allows the parties to

describe their stories in their own words to clarify the meaning of

case evidence. Without importance placed on the spoken word,

witnesses and defendants are somewhat silenced as the judge

reviews written evidence. The case dossier upon which the judge

relies, while factually comprehensive, is arguably only two

dimensional relative to oral testimony which, when encouraged,

can give added dimension to a defendants story. An additional

difference between the two systems is that the Italian courts do not

provide any sort of grand jury hearing at the preliminary stage. The

gup decides independently whether or not there is enough evidence

to carry a case to trial. This is another similarity to the old

inquisitorial system wherein the judges decisions dictate the

course of the case rather than a decision by a jury. In this respect,

18 See GRANDE, supra note 3, at 242.

34 WULRVol V, Issue IIISpring 2012 the judges have not transitioned out of the role they held from the

oppressive days of the Rocco Code. It is evident that although the

CPP carves out roles for the opposing parties in a criminal case,

their responsibilities are often overshadowed by the dossier and

judge oriented inquisitorial model.

Id. Pretrial Preparation: Plea Bargaining and Fast Track Trials

Another one of the essential features that the Italians did

not fully incorporate from the American system was plea

bargaining. Due to the cost and the risks involved, most defendants

in the US accept plea bargains instead of proceeding to a full trial.19

Oftentimes both the defendant and the prosecutor benefit from this

arrangement because the defendants charges are reduced and the

prosecutor is no longer burdened by the task of proving the

defendants guilt beyond a reasonable doubt. In the adversarial

system where the prosecution has the sole responsibility of proving

the defendants guilt, a plea bargain can be an effective means of

saving time and resources. However, plea bargaining is not as

widely accepted in Italy as it is in the US. In Italy, plea bargains

(patteggiamento) are used sparingly and only for lesser crimes. While

American defendants submit plea bargains for the majority of

criminal cases, the Italian system does not encourage their

defendants to do the same. Italians explain their hesitancy to

accept plea bargains in place of searching for the truth because they

believe the system is fundamentally inconsistent with their sacred

civil law tradition. As a result: A system of plea bargaining like

that existing in the Unites States is viewed as fundamentally

inconsistent with the sacrosanct civil law values of uniformity and

truth.20

19 Albert W. Aschuler, Plea Bargaining and Its History, 79.1 COLUM. L. REV. 1-43 (1979) (Plea bargains are an extremely popular option. They are so common that ninety percent of defendants plead guilty to the charges against them in lieu of going to trial.). 20 William T. Pizzi and Luca Marafioti, The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation, 17 YALE J. INT'L L. 10, (1992) (Discussing the difficulties of

Callahan 35

Because Italians cannot reconcile plea bargains and their civil law

system, plea bargains are rarely granted in Italian criminal courts.

The few crimes that are eligible for plea bargains under the CPP are

crimes warranting no more than five years in prison or those

punishable by fine.21 Higher crimes such as murder do not qualify

for plea bargaining because Italians believe it undercuts the search

for truth and execution of justice. This is also because Italian

prosecutors are charged with the duty to prosecute the crimes that

they encounter, especially if they are as severe as the Knox case.

Despite Italys restrictions on plea-bargaining, defendants

still have other options to reduce their sentences. The option that is

the closest Italian equivalent to the American plea bargain system

is a fast-track trial. The key difference between the two procedures

is that plea bargains in the US are based on reducing the charge

while the fast-track trial only reduces the sentence. According to

the CPP, defendants are allowed to waive their right to a full trial in

exchange for a reduced sentence. The defendant must voluntarily

choose this option so that the court does not violate his right to

representation and due process without his explicit consent. After

the defendant agrees to a fast-track trial, the defense is not allowed

to question witnesses or submit any evidence other than the

preliminary investigation file to the court. In exchange for these

sacrifices, the court grants the defendant a reduction in his

sentence of one third. Still, the defendant may appeal his sentence

to a higher court to further reduce his sentence. For example, Rudy

Hermann Guede, a key suspect in the murder of Meredith Kercher,

opted for the fast track trial. While a murder conviction in Italy

typically renders a verdict of life imprisonment, Guede received a

implementing adversarial trial systems in Italy. Italy and many other European countries have a doctrine of mandatory prosecution whereby the prosecuting authority must bring a criminal complaint against someone if they have reason to believe that person has committed a crime. This, of course, does not mean that the case must proceed to the filing of formal charges and then to trial, but rather that a file has to be opened up and the matter investigated if a police officer or a member of the public gives evidence of a crime to the public prosecutor.). 21

C.P.P. art. 444-448.

36 WULRVol V, Issue IIISpring 2012 sentence of only thirty years imprisonment after he accepted a fast-

track trial. This sentence was subsequently reduced by nearly half

on appeal.

Although these systems share some of the same

characteristics, they are hardly alike in practice. Fast track trials

and plea-bargains differ greatly in respect to who has the

bargaining power in these negotiations. Within the American plea

bargain system, defendants have control over declaring their own

guilt (instead of the judge or jury) in exchange for lesser charges

and jail time. This process is clearly linked to the adversarial system

because it mandates that the prosecution, the defense and the

defendant work to create the most favorable outcome for their

respective sides. Conversely, fast-track trials are reminiscent of the

civil law tradition because the judge still determines the

defendants guilt without negotiating with the opposing parties.22

This, an American judge could not do without cooperation from the

parties involved. Therefore, Italys tendency towards fast-track trial

instead of plea bargains reveals that although Italy has adopted

many adversarial procedures, it is more of a hybrid system23

because it is still faithful to judicial discretion when bargaining

with defendants. Because the judge has the power to assign guilt

with plea bargains and fast track trials in Italy, the defendant

remains under the judges control as opposed to a defendant in the

American system who has the power to admit his own guilt and

negotiate his charges and prison sentence.

22

PIZZI, supra note 20, at 9 (In Italy, so important is the heritage of mandatory prosecution that there is a provision in the Italian Constitution that enshrines the principle of mandatory prosecution; The public prosecutor is required to file a criminal complaint if he or she has reason to believe that a crime has been committed. This mandatory prosecution is considered a protective measure for citizens, as it requires prosecutors to treat all offenders equally. Italian lawmakers fear that without mandatory prosecution, prosecutors might be corrupted by political pressure to prosecute some offenders but not those who are protected by their political connections.). 23 Studio Legale Canestrini, The Italian Criminal Trial, STUDIO LEGALE CANESTRINI LAW FIRM (May 20, 2012), http://www.hg.org/article.asp?id=26794 (The Italian criminal system is very much a hybrid system today. In 1988, a new code was enactedThe resulting system could be considered to be somewhere in between the two.).

Callahan 37

Ie. The Trial Phase: Jury Selection

This selective implementation of adversarial procedure is

further apparent through the different methods of jury selection

that each country uses. In the American adversarial system, jury

selection is crucial to establishing a bifurcated trial wherein the

jury decides on issues of fact and the judge presides over issues of

law. In this selection process, also called voir dire,24 the prosecuting

attorney and the defense counsel handpick the jury that will hear

the defendants case instead of presenting their arguments to a

panel of professional judges. Since each party has the ability to

select their jurors, the prosecution and the defense have the

opportunity to select the most receptive jury possible for the

arguments they plan to use in trial.25 And each side has a set

number of peremptory and cause challenges26 to use to excuse

clearly biased jurors from serving in the trial. Since the jury is only

supposed to decide on issues of fact, the goal behind the voir dire

process is to reduce the number of biased jurors from deciding the

case based on reasons unrelated to the facts provided in the trial.

Voir dire is therefore used to further the goals of the adversarial

structure granting more power to the parties in an effort to leave

less room for judicial discretion.

24 This French term, meaning to see and to speak, originates from the Latin expression, to tell the truth. 25

LEE EPSTEIN & THOMAS G. WALKER, CONSTITUTIONAL LAW FOR A CHANGING AMERICA: RIGHTS, LIBERTIES, AND JUSTICE (7th ed. 2010) (There are, however, certain restrictions to voir dire. If one party believes that the other struck a juror from serving in the trial for an unprotected, discriminatory reason [e.g. race or in some cases gender], that party might issue a Batson challenge to restore the juror to the jury. The judge uses the strict scrutiny rule when deciding if a juror was struck for racial reasons and intermediate scrutiny for gender discrimination.). 26

EPSTEIN & WALKER, supra note 25 (A peremptory challenge refers to the act of striking jurors from serving in a trial for almost any reason whatsoever. Although there are not unlimited peremptory challenges, each side retains the right to strike a certain number of jurors using this challenge depending on jurisdiction. Cause challenges are slightly different. Parties use this challenge to strike persons that they believe cannot be fair or impartial. Peremptory challenges need not be used in these cases.).

38 WULRVol V, Issue IIISpring 2012

Interestingly, the Italian courts are not comfortable with

this process and do not employ it. Contrary to the bifurcated

American adversarial structure, Italian judges decide on both issues

of fact and law. This is one of the strongest examples of how much

more power Italian judges have over criminal cases than American

judges who cannot decide on the facts of a case. In extreme cases

such as murder trials, however, the Italian judges are assisted by a

panel of layperson judges who also decide on the facts and are

advised by the two professional judges on the laws related to the

case. This team of six laypersons constitutes the loose equivalent of

an American jury. These laypersons are not selected through voir

dire but instead at random. This means that any juror between the