In rethinking its criminal-justice procedures, Taiwan has created a system that is neither fish nor fowl. Recent reforms to the system have tried to strike a balance that suits the cultural criteria of the country. But will the new shoe fit?
"The life of the law has never been logic, it has been experience." That oft quoted remark from Oliver Wendell Holmes reflects the idea that the legal system and laws of a nation owe far more to culture and history than they do to some a priori logic. Over the past several years, Taiwan's criminal-justice system has undergone a number of reforms. While most legal professionals and the public agreed legal reform was in order and while the attempts at legal reform were commendable in spirit, many of these reforms are bound for failure because they failed to fit together into a coherent whole and failed to account for cultural factors. However, despite the rocky first round of criminal-justice reforms, there are forces at work within Taiwan's criminal-justice system that will drive more successful subsequent rounds of reform.
Trial-System Reforms
The centerpiece of Taiwan's criminal-law reform is the newly instituted "modified adversarial system." The Judicial Yuan, which was largely responsible for dreaming up the system, has devoted considerable rhetoric to how important this new trial system is and how it will provide a number of fundamental advantages, including enhancing judicial independence, protecting human rights, and providing for more fair and just criminal trials.
Operating in the world today are two basic approaches to criminal trials: the adversarial system and the Continental system. The adversarial system is the Anglo-American approach; the Continental system is the approach used in most of Europe. The judge in the adversarial system has little or no involvement in the direction of the trial. The two parties and their attorneys frame the trial issues and are responsible for moving the case forward by calling witnesses, conducting questioning, and presenting physical evidence. Evidence law and procedures figure heavily in adversarial systems. In the Continental system, which was the system used up until this year in Taiwan, the judge has the responsibility of conducting an investigation of the facts, handling the calling and questioning of witnesses, reviewing the physical evidence, and determining what the legal issues are in the case. As a result, the judge is the most active "player" in the case; evidentiary and procedural rules are not of any great importance.
Upon the founding of the Republic of China in 1912, the decision was made to follow a Continental model for the republic's new trial system, and that system was carried over to Taiwan. The Continental system was a natural fit for Chinese culture as it had much in common with the imperial Chinese legal system. Taiwan at different times has used the imperial Chinese system, the Japanese system (which is a Continental system), martial law, and subsequently a German-based Continental system. All these systems share common basics: they are judge centered, statute rather than case-law based, and do not use juries. With the exception of the martial law period, each criminal-law system that had been used in Taiwan was a kind of natural evolution from the previous system. The newly instituted modified adversarial system is an attempt to bring together elements from various versions of the Continental system and fresh elements of the adversarial system into a coherent new approach for Taiwan.
The core features of the new modified adversarial system are an increase in the use of cross-examination and placing the responsibility on the prosecutor to handle the calling and questioning of witnesses. The new system also incorporates Taiwan's first Anglo-American-style evidence law and has been accompanied by changes in the Criminal Code that seek to clarify the role of the prosecutor and judge. The Judicial Yuan had hoped that the new system could take the best from the two systems, and act as a compromise that would be accepted by the many factions operating within the Judicial Yuan and the wider legal profession. That hope may not come to pass.
Noticeable in the recent reforms of Taiwan's criminal-justice system is the failure to determine exactly what the system's goals are and to prioritize those goals. A criminal-justice system can serve a number of goals: protecting public safety, protecting civil liberties and constitutional rights, resolving disputes, finding the "truth" of the case, offering a sense of retribution to victims, and so on. As to which are the priorities in Taiwan's new criminal-justice system, the reformers seemed to simply think the answer is all of the above.
That is nice in theory, unworkable in reality. The goals are often mutually irreconcilable and must be prioritized. A very basic example is the exclusion of illegally obtained evidence. When this is done, the goal of protecting civil liberties is served but the goals of finding the truth and protecting public safety are denied. The question becomes what are the priorities. That question has never been suitably answered. The result is that criminal-justice reforms have been a hodgepodge of programs that serve different, often disparate, goals, leaving Taiwan's bench unsure of what its goals are and in what order they are to be pursued.
Costs? No Worries!
Another fundamental aspect of reform that seems to be taboo is any consideration of the costs of different criminal -justice reforms. In the process of determining the new reforms there was never any cost analysis or cost projection conducted to find out what fiscal impact the new modified adversarial system or any of the other reform programs would have. While it is commendable to take the position, as the Judicial Yuan seems to have, that money does not matter and that Taiwan must have a system that is just and progressive, this position is not realistic in a time of declining revenues and general economic slowdown.
Cost issues naturally tie in with manpower issues. One of the major problems with the proposed reforms is that the modified adversarial system places a huge new burden on a prosecution system that is already stretched as thin as it will go. Taiwanese prosecutors are responsible for a much wider range of tasks than their American counterparts. For example, the bulk of the investigative work falls to prosecutors in Taiwan, in contrast to America where investigation is handled by the police. Also, many tasks that are handled by the probation departments in the United States fall to the prosecutors in Taiwan.
The modified adversarial system, with its demand that the prosecutor have primary responsibility for the in-court presentation of the case, adds a major increase in the prosecutor's workload. A rough estimate is that for the new system to function, approximately a third more prosecutors would be needed. But there are no indications that any significant number of new prosecutors is to be added anytime soon.
The Role of the Judge
Beyond the fundamental problems of what are the priorities and how much will all this cost, and how do we get one prosecutor to do the work of two, are a host of other problems with the new reforms. Prominent among them is confusion over the role of the judge in the new system. Are Taiwan's criminal-law judges responsible for finding the "truth" or deciding if the prosecution has proven the defendant guilty beyond a reasonable doubt. The word "truth" is in quotes as many would doubt whether one finds much "truth" in any courtroom anywhere in the world. Be that as it may, the Continental tradition places a great emphasis on the judge uncovering the facts of the case by whatever means legally available. In contrast, the judges' duty in the adversarial system can best be summed up by the American Bar Association Standards for Trial Judges, which states: "The purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law." In other words, an American trial judge's duty is to determine if the state has met its burden of proof. It is a yes-no question that does not require judges to justify their decisions or claim to have found any "truth" about the case.
Trial judges in Taiwan, in contrast, have to file detailed written judgments in all their cases. The judgments can be better viewed as "justifications" in the sense that judges must justify the decisions they made, justify it to the parties and to their high court "supervisors." If the high court is not satisfied with the handling of the case by the lower district court judge, the case is sent back for further investigation by the district court.
This puts the two systems on a direct collision course. For on the one hand, the judge in the modified adversarial system is supposed to take a hands-off approach toward the presentation of evidence and the questioning of witnesses. That is to be left to the attorneys and the parties. But on the other hand the judge is required by law, by his "supervisors," and by the demands of Taiwanese society to produce a detailed judgment in the case. This becomes a problem if judges do not involve themselves to a considerable extent in the handling of their cases. Simply put, judges often cannot get the research material they need for their reports if they just sit back and let the attorneys and parties present the cases. The problem is worsened by the fact that in the majority of cases the defendant has no attorney. Taiwan's trial judges view this problem as the major reason why the modified adversarial system is either doomed to failure or doomed to be ignored.
Themis vs. Judge Pao
Comparing the activity levels of a Taiwanese judge and an American judge serves as an excellent example of the influence of culture on the public's expectations and highlights a major flaw in the new approach. The Taiwanese public expects, and the litigants usually demand, that the trial judge take center stage and conduct the investigation-trial. The cultural model is Judge Pao, a semi-legendary Chinese judge who mixed the clever detective work of Sherlock Holmes with the judicial wisdom of Solomon. That ideal is deeply ingrained in the Taiwanese cultural mentality. In contrast, American cultural models call for a judge more along the lines of Themis, the Greek goddess of justice who usually adorns the facade of American courthouses. She is silent, blindfolded, and clasps a sword in one hand and scales in the other. The image is of a judge who sits silently, in stone-like immobility, observing all, and then at the conclusion speaks authoritatively and justly, proclaiming a one of two stark verdicts: guilty or not guilty. American judges who involve themselves as actively as Taiwanese judges do in a criminal case would find themselves removed from the bench quite quickly.
Herein lies the problem. The Judicial Yuan's modified adversarial system attempts to impose an American style of judicial demeanor on a society that has far different expectations. Taiwanese court cases typically follow this pattern: the plaintiff comes into court, without an attorney. The plaintiff dumps a huge pile of scattered, unorganized documents tied together with a string on the judge's bench, then turns to the defendant and says, "You cheated me." A screaming match ensues. And the public's expectation is that it is the judge's duty to sort through the pile of scattered paperwork that constitutes the plaintiff's case, attempt to make some sense of it, find the "truth," and write a lengthy judgment.
Regardless of whether the public's expectations are reasonable or not, they are the culturally accepted norm, and any reforms must take those expectations into account. Failure to do so will result in the public's further distrust and dislike of the judicial system.
Reform Associations
There are two positive forces at work within Taiwan's criminal-justice system that will, in the long run, do much to ensure that coherent reforms do occur. The first of these forces are the various legal reform associations that are working on different aspects of criminal-justice reform. The Prosecutors Reform Association, which as the name implies is a group made up of reform-minded prosecutors in Taiwan, has been pushing for a number of reforms that will enhance Taiwanese prosecutors ability to fulfill their wide range of duties within Taiwan's criminal-justice system.
The Prosecutors Reform Association has put forward a number of ideas intended to streamline the prosecution function, allow prosecutors to focus more effectively on priority tasks, and ensure that quality prosecutors stay within the system and are promoted through the ranks based on merit.
On the other side of the fence, the Judicial Reform Association is composed of private criminal defense attorneys who are pushing for reforms that will enhance the system's protection of civil liberties and human rights as well as provide more transparency and public confidence in the system. Much of the Judicial Reform Association's work has involved Taiwan's death-penalty procedures and its system of judicial selection and discipline. The Judicial Reform Association sponsored Taiwan's first ever judicial evaluations. That program generated considerable discussion and debate about the quality of Taiwan's bench and what steps should be taken to improve it.
Commitment to Continuing Legal Education
In addition to these reform associations, the commitment to continuing legal education on the part of Taiwan's judges and prosecutors is another positive force at work within Taiwan's criminal-justice system. Both the Ministry of Justice and the Judicial Yuan have ongoing programs of continuing legal education for the prosecutors and judges. These programs range from one-day, in-house seminars, to sponsoring prosecutors and judges to go abroad for graduate work. Upon their return, these student-professionals often have valuable ideas that may be incorporated into Taiwan's evolving criminal-law system.
Although this round of criminal-justice reforms may not yield much success, the long-term success of reforms in Taiwan's criminal-justice system seems assured due to the presence of committed individuals and associations within the system.
Brian L. Kennedy is an American attorney
living in Taiwan, where he writes on local
criminal justice and human rights issues.
Copyright (c) 2003 by Brian L. Kennedy.