This article will look at the United States rights guaranteed to a defendant during pretrial proceedings and focus on the rights afforded to defendants in Italy. 

United States and Italy 

In the United States, once a person has been charged or convicted with a crime(s), there are certain rules that come into play. Individuals have protections under the Sixth Amendment of the Constitution. Additionally, a defendant can file dispositive pretrial motions found under Rule 12. However, there are questions that arise under how attainable a motion to dismiss can be; especially regarding some grounds found under Rule 12. An example includes pre-indictment delay, which has a higher standard. In United States v. Marion, 404 U.S. 307 (1971), 326-27, the Supreme court held that the standard for pre-indictment delay is a showing of actual prejudice from the delay and a bad faith attempt by the government to gain a tactical advantage from the delay or reckless disregard by the government. This is a difficult standard for defendants to meet.  Similarly, there are concerns the media has brought to light regarding the difficulties a defendant in Italy’s Justice System may face. In Italy’s criminal justice system, “the length of criminal trials have become an issue.” Criminal trials in Italy can take an average of five to six years. In both the United States and Italy, there is concern over an innocent person waiting behind bars for a long duration. Can notions of fairness and the ability to overcome difficulties be met with either system? The answer is, it depends. Thus, the focus of this article will be on pretrial detention, what pretrial motions the defendant can file, and the limitations that arise in the defendant’s ability to present an effective defense at trial. 

Rights under the U.S. system: 

The U.S. guarantees rights under the due process clause, and that it is an adversarial judicial system that focuses on the rights of defendants. The Fifth Amendment, Sixth Amendment, and Fourteenth Amendment guarantee the defendant rights at pre-trial and during trial. Under these Amendments, defendants have the right to contest the basis of their conviction. In the United States, the chief purpose of the Sixth Amendment “is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser . . . impairment of liberty imposed on the accused.” United States v. Stierwalt, 16 F.3d 282, 285 (8th Cir. 1994). Further, “length and effect of delay must be balanced with purpose or intent for delay; a judge’s duty to safeguard a defendant’s due process rights must be tailored to avoid inappropriate intrusion in the areas properly assigned to prosecutorial discretion.” United States v. Alderman, 423 F. Supp. 847, 856 (D. Md. 1976).

Rights under Italy’s justice system: 

Prior to the 1980’s, Italy’s criminal justice system was more inquisitorial which meant that the judges often acted as the prosecutor as well as the judge. However, there have been changes to the Italian criminal justice system. An effort to reform the criminal procedure system in Italy started in 1988, inspired by the Anglo-American adversarial system. Giulio Illuminati, The Frustrated Turn to Adversarial Procedure in Italy (Italian Criminal Procedure Code of 1988), 4 Wash. U. Global Stud. L. Rev. 567 (2005).  Under the new code, judges are to act unbiased and not help the prosecutor find facts.

While there have been changes and strides for reform, there are still issues that arise in pre-trial detention. In Italy, pre-trial detention is defined as detention in prison during the investigations and before the decision of guilt or innocence is made. Italy is among some of the European countries with “the highest percentage of pre-trial detention and frequent violation of Article 5 of the European Convention of Human Rights.” The key purpose of Article 5 is to prevent “aribtrary or unjustified deprivations of liberty.” Further, Article 5 of the European Court of Human Rights (ECHR) provides every person with security and liberty; some of these rights may include the right to be tried in a reasonable time or to be set free during investigation. Unfortunately, there have been violations of the ECHR as it pertains to excessive length of pre-trial detention as well.  For instance, in Italy, people are kept in custody prior to trial for longer than 18 months. However, it should also be noted that pre-trial detention has decreased in Italy in the last few years. Part of this is due to reforms in the legislation of pre-trial detention

As provided by an article published by an Italian criminal defense attorney Nicola Canestrini, pre-trial detention is adopted if there is a likelihood that the defendant has committed the crime and it is necessary in order for the defendant to not flee. A judge may adopt this detention if the prosecutor has asked for the defendant’s rights of movement to be limited. Further, in contrast to the United States, in Italy, bail does not exist. However, the defendant can appeal against the order of the Judge before the Court of Liberty. 


The United States has an adversarial system where the prosecution must prove the elements being alleged in a crime. Similarly, Italy has adopted an adversarial system where more efforts are being made so that defendants have a right to a neutral justice system. Both the United States and Italy share a commonality. There are forms of injustices because suspects and defendants are detained for long periods of time and this may prevent the defendant’s right to an effective trial. In the U.S., there is case law that provides standards and rules on how defendants can advocate for their rights. However, Italy does not have the same accessible resources to defendants. In Italy, the defendant is informed that he can file a defensive brief within twenty days after the prosecution has concluded their investigations. The defendant can also ask for the decision to be reviewed by another judge


The United States and Italy have different provisions and terms that encompass “due process” and “fairness.” However, from the information gathered, it can be shown that each country weighs evidence and grants certain rights to defendants. While in Italy, there have not been as many rights granted in the pretrial phases, there have been changes to their criminal procedure throughout the years. Further, while there are not equivalent rights of a motion to dismiss or a motion to suppress per se in Italy, there are efforts being made to reduce defendants who are being detained prior to trial. 

Author Biography: Jocelyn Martinez is a 2L student at the George Washington University Law School. Jocelyn Martinez has been a Moderator for ILPB since Fall 2022. She is interested in international law, criminal law, family law, and immigration law.