Chapter III   
The Role of the Public Prosecutor in Court
The charges raised by the prosecutor against the accused are screened by a single judge at the preliminary hearing in order to deem whether there is enough evidence to support the prosecution at trial. This stage can end with either the issuing by the judge of a formal indictment or the pronouncement of an acquittal (sentenza di non luogo a procedere).
If the screening of the charge is favourable to the prosecution, the formal indictment opens up the trial stage, where the charges will need to be fully proved. The burden of proof lies with the prosecution: any doubt on the defendant’s guilt will resolve in an acquittal, as the CCP explicitly affirms that guilt should be proven beyond reasonable doubt.
The trial court is usually composed of professional judges. A partial participation of lay judges occurs when the crime is brought before a particular court (Corte d’assise), which only deals with very serious offences (crimes punished with a penalty of more than 24 years of detention). This court is composed of two professionals and six lay judges.

The nature of proof required at the trial is defined by the indictment, which is issued by the judge of the preliminary hearing. The content, however, is that defined by the prosecution in the charge presented at the hearing, as the judge of this stage cannot modify the charges filed. The power of determi¬ning the offences charged lies with the prosecutor only.
Coherent with the legality principle, the prosecutor does not have any discretionary power to decide to charge the accused with a less serious offence, despite the existence of sufficient evidence to charge the suspect with a more serious crime. In such a situation the prosecutor should try the accused for the crime he has sufficient evidence for. In this regard, the prosecutor in the Italian system cannot be considered a dominus litis.
A clarification should be made here. As seen before, the principle of mandatory prosecution does not exclude the factual existence of some discretion. This discretion descends also on a multitude of possible interpretations of the law describing the illegal fact (as well as from the numerous cases the prosecutors have to handle, so that they need to define some priorities). However, this discretion in practice applies more to the preliminary stages, when charges are filed and screened, than to the trial phase. When this full jurisdictional stage in the procedure comes along, it is harder for the prosecutor to use his discretion, since it might be overruled by the judge. Therefore, once the charges are brought to trial, the prosecutor does not have any discretion in prosecuting them, neither could he dismiss the case anymore and all his moves are from now on constrained (this constraint also affects the power of varying the indictment).

The charges filed by the prosecution against the defendant, even though they are previously screened in a preliminary hearing, might still be adapted during trial within certain limits.
The trial hearings, in fact, can highlight elements of the criminal conduct which differ from the initial description of the indictment. In such case, the prosecutor may introduce amendments to the facts originally alleged.
The possibility of amending the facts charged, however, is bound by legal limits. Amendments are allowed only if they introduce a slight differ¬ence from the original facts described. In particular, the prosecutor cannot replace the fact previously alleged with another completely different. In other words, the amendments are allowed only if the change is not substantial. If a completely different fact is filed in substitution for the one charged originally, the prosecutor shall follow the rules governing the charging of an additional offence.
The defendant does not have any chance to oppose the modification decided by the prosecutor. The only right the accused can raise is that of the adjournment of the trial (for a minimum of twenty days and not more than forty) so to arrange his strategy to the modified charge. Of course, the defendant is also given the right to introduce new evidence related to the amendments made. The accused is entitled to these rights without any regard to the fact that the amendments caught him by surprise or not. The concrete element of surprise for the defendant is not taken into account by Italian law.
The prosecutor could also charge an additional offence if evidence of such crime arises during the trial proceedings. In such case, though, the prosecutor does not have a right to add new charges to the original indictment, as the defendant can oppose joining offences. Therefore, a new fact can be filed against the accused for the first time during trial only if the prosecutor so requests and the defendant explicitly consents. The presiding judge, also, plays a role in such situations since he has to authorise the new charge, in order to guarantee that the defendant’s consent is free and that the additional charge will not be prejudicial to a speedy definition of the trial. If the defendant does not consent to the new charge, or the presiding judge denies authorisation, the prosecutor will have to proceed against the illegal conduct just discovered following the normal procedure (presenting a charge to the judge of the preliminary hearing and asking him to indict the accused for that crime).
If an additional charge is filed, the accused is given the same rights he has in the case of the amendments of the charge: he can ask for an adjournment of the trial and is allowed to bring new evidence.
A much discussed topic is that on the content of the different offence, as in many cases it could be hard to draw a clear distinction with the situation of the modification of the same offence. The main opinion affirms that a new offence is that which is logically compatible with the previous one charged; while if the new charge could not be logically added to the previous one, then it is a case of variation of the same offence. However, as mentioned before, it is also common to assess that if the amended charge, despite its logical incompatibility with the original one, is substantially different from that one, the rules to be followed should be those of the charge of a new offence in a different trial.
The power of amending the indictment, and adding new charges to it, is exclusively granted to the prosecutor. This means that judges should never interfere with the decision to prosecute somebody for a certain offence. Consequently, the judge does not have any power to modify the charge. Had he been given the possibility of changing the descriptions of the facts alleged, he would substantially be allowed to play a role in the prosecuting decision, which would affect his impartiality. However, the above assumptions do not imply that the judge is irrelevant in the discipline of the modifications of the indictment: instead he plays a crucial role in controlling that the prosecutor acts within legal boundaries, as seen in the case of the charge of an additional offence.

The rules for amending the indictment and those for filing a new charge during trial are of extreme importance. In fact, the Italian system provides a specific limit to the power of the court to decide the case. The court is entitled to respond only to the facts alleged in the indictment. The accused could not be held responsible for facts different from those filed. In other words, the judge is absolutely bound by the facts described in the indictment, he can believe the defendant guilty or not, but with exclusive regards to the facts described. A rule which makes a partial exception to the above principles should be mentioned: in case the evidence collected allows the court to ascertain an illegal fact which differs from the one alleged, if the difference is not substantial, the court – other than pronouncing an acquittal – should hand the prosecutor all the records of the proceeding who will then have to start all over. This particular rule is established because if the court had the chance to acquit only, the double jeopardy principle would prohibit trying the accused again for the offence in hand.
According to the iura novit curia principle, the court is instead absolutely free to determine the juridical qualification of each fact alleged, nor is it somehow bound by the qualification given in the indictment. It is for this reason that there is no need for the prosecutor to modify the charge only for assessing a different juridical qualification of the same facts alleged.

After the preliminary questions, the trial starts with the opening speech by the prosecutor. The prosecutor presents the facts alleged and the evidence to prove the defendant’s guilt. The accused will also make a speech to present his version on the allegations filed and to introduce the evidence he will present. These introducing arguments play the function, not only to give the court a first idea of the case, but also to allow the court to admit evidence (or better, to exclude improper evidence that is irrelevant and in contrast with the law).
Once evidence is admitted, the prosecutor will again take the stand to effectively present the evidence he has brought. He decides the sequence of the presentation of the witnesses and directs the examination of his witnesses, which will then be cross-examined by the defense counsels.
Cross-examination as the ordinary way to hear testimony was intro¬duced by the 1988 CCP.
First, witnesses are examined by the party who has presented them; then, it is the other party's turn to pose questions.
As to the main rules provided for cross-examination, questions and answers should be on specific facts. Responses should be pertinent and short, the witness cannot freely tell his story, even if the courts often allow extended narrative. The questions which could be prejudicial to a genuine testimony (misleading) are not allowed and should be promptly blocked by the president of the court. Leading (suggesting) questions are prohibited only in the direct-examination, as they can be posed in the cross-examination phase.
Cross-examination might touch the general limit of respect for a person. It should be avoided on those occasions where there is a particular need to safeguard a weak witnesses, such as a child. In fact, the examination of a minor will be conducted by the president of the court, on questions raised by the parties. The eventual support of a member of the family or of an expert on children’s psychology can also be provided. Nevertheless, cross-examination might still be possible if the president of the tribunal believes that it does not affect a genuine testimony.
The president of the court may pose questions to the witness only when the parties’ examinations are over; in such case the parties will again be entitled of another examination turn with that witness.
Once the prosecution has produced all the evidence, it is the defendant’s turn to present evidence. At this stage the prosecutor will play a role in cross-examining the defense’s witnesses.
The legal order in introducing the evidence (prosecutor first, defendant goes next) can be changed on the parties’ agreement.

After the closing of evidence, the counsels open the conclusive arguments. The order of speeches puts the prosecutor in first place again, coherent with the burden of proof lying with him. The defense is permitted to reply in rebuttal and should be the last to have his speech. The parties may agree to modify the order of speeches.
In his argument the prosecutor sums up all the evidence. He describes the criminal offence he believes was committed by the defendant and the evidence that supports his hypothesis. He also recommends the juridical qualification that fits the offence and requests a specific sentence to be imposed on the accused. If the prosecutor believes that the evidence presented in the trial is not enough to assess the defendant’s guilt he can ask the judge for an acquittal.
The court, however, is not bound to any of the requests of the prosecutor. The role of the court is limited to deciding on the facts described in the indictment, as seen above.