By adopting the Modified Adversarial System, moving
closer to Anglo-American procedures, Taiwan hopes to
improve the conduct of trials in criminal cases. But will
there be enough prosecutors to handle the increase in
their duties?
"The greatest legal engine ever developed for the ascertainment of truth." Those are the words of John Wigmore, the most famous scholar of evidence law in the Anglo-American tradition, speaking specifically of cross examination but in a broader sense referring to the adversarial trial system in general. It seems that many in the Taiwanese legal community would agree with Professor Wigmore. It also seems as if the future of Taiwan's trial system is clearly headed toward the American adversarial system. Criminal trials may soon look more like Perry Mason and LA Law than like the traditional Judge Pao. It represents a major, highly controversial change.
Changes in Taiwan's law over the past few years have given birth to what the Judicial Yuan has named the Modified Adversarial System. Last year was a major turning point in moving toward this new system. Several important provisions of the Criminal Code were amended to turn Taiwan's trial system away from the traditional inquisitorial model and toward an Anglo-American adversarial system.
To understand the change, one needs to appreciate the differences between the two major systems. The adversarial system, favored in Common Law countries like Australia, Great Britain, and the United States, is dominated by the parties' attorneys, whose task is to present their sides' evidence, arguments, and version of the truth to the court or jury. In essence, the adversarial system involves a two-sided contest between prosecution and defense in a judicial arena.
The judge in the adversarial system has little or no involvement in the direction of the trial. Britain's Lord Denning put it best: "In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries." The two attorneys largely frame the trial issues, not the judge. The attorneys present the issues to the judge, who then rules on them. Adversarial criminal trials are to a great extent constrained by formal rules of evidence, which tend to have a major impact on the outcome of the case.
This is in marked contrast to the inquisitorial system. Sometimes called the Continental system, this system, as the name implies, is favored on the European continent, particularly in France, Germany, and Italy. In the inquisitorial system, the judge (or judges, since frequently there is a panel of three judges) is a much more active participant in the proceedings. The judge in this system is charged with the task of finding the truth within broad limits, by whatever means the judge deems appropriate.
An often-cited analogy is that in the adversarial system the judge is an umpire watching the game as the two teams compete, whereas in the inquisitorial system the judge is the director of an improvised play whose outcome, not known to him at first, depends heavily on his mode of directing. This analogy illustrates the fact that the judge is the center of the proceedings in the inquisitorial system. The judge combines the roles of both judge and prosecutor, and gathers the evidence as he sees fit.
It should be noted that the presence or absence of juries is a separate issue from the choice between these two systems. A country can have an adversarial system--or an inquisitorial system--either with or without the jury system.
When looking at these two models, it is important to realize two things. First, there is no "pure" adversarial system or "pure" inquisitorial system. All modern criminal legal systems are to some extent hybrids. Which brings up the second point: whatever system a country decides to use will have to be, to a certain degree, "localized." In other words, no nation can simply pick up some foreign system, drop it in, and expect it to work. Therein lies the challenge for Taiwan--to successfully "localize" the adversarial system.
Taiwan's "old" criminal trial system, which originated in China during the Republican period, is a mix of two inquisitorial systems, the Japanese and the German. The system was first developed soon after the Republic of China was established in 1912. The recent debate over whether a German or an American model should be adopted for Taiwan's legal system is actually an echo of exactly the same debate that occurred nine decades ago. At that time, as at present, a strong contingent favored adopting an American trial system. In another parallel to today, those favoring the American model back in 1912 were those attorneys who had been trained in the United States.
Another, perhaps unfortunate, parallel is that the change from one system to another was largely carried out without any input or approval from the general public. Taiwan's new Modified Adversarial System is being implemented without any kind of public referendum or approval. That is not to say the public disapproves--only that the public is not involved in any aspect of the decision making.
The impetus for the Modified Adversarial System came from a series of street demonstrations that took place in the late 1990s. One remarkable aspect of those public protests was that many of the demonstrators were attorneys, prosecutors, and former judges, giving a clearly professional cast to the protests. In response to this call for reform and modernization of Taiwan's legal system, the Judicial Yuan and the Taipei Bar Association hosted the National Judicial Reform Conference in July 1999. In addition to the main conference, various nongovernmental organizations at the same time hosted a number of ancillary conferences. Together these activities were billed as a kind of "summer of judicial reform" that was aimed, at least in theory, at devising a concrete plan for judicial modernization.
The end result was less than what was hoped for. Rather than reaching a consensus, the National Judicial Reform Conference wound up as a stalemate between the Judicial Yuan and the Taipei Bar Association on one side and the Ministry of Justice (MOJ) on the other. The issue dividing the conference into these two entrenched sides was the fundamental point of whether or not Taiwan should convert to the adversarial system, and if so, what kind of timeframe should be envisioned. Many commentators regarded the conference as something of a sham. Although its ostensible purpose was to gather facts, discuss the issues, hear input from many sources, and then reach a widely acceptable conclusion, they said the reality was that the Judicial Yuan and Taipei Bar Association had already "predetermined" that the adversarial system was the way to go. According to this view, the conference's real purpose was to convince others of the wisdom of this direction and to reach either a real or illusory consensus.
Whatever the truth was, the results were inconclusive. Then-President Lee Teng-hui publicly criticized the conference for its failure to reach a consensus on the fundamental issue of choosing between the adversarial and inquisitorial systems, as well as its failure to address a range of other subsidiary issues. Despite the apparent failure of the National Judicial Reform Conference to resolve the adversarial versus inquisitorial debate, the die was clearly cast in favor of some form of adversarial system. But given the reality of lack of consensus--the MOJ opposed any quick move toward an adversarial system and many sitting judges failed to share the Judicial Yuan's admiration for that system--a compromise became necessary. The Modified Adversarial System is that compromise.
As a compromise, the Modified Adversarial System is an attempt to satisfy all parties. It is an attempt to bring together the best elements of both the adversarial and inquisitorial systems and be all things to all people. On the positive side, the new approach may reveal itself to be an elegant grafting of two disparate systems, a hybrid that is unique to Taiwan and well-suited to the Taiwanese situation. Some commentators, however, fear that the new system may prove to be a kind of Frankenstein monster created by an ill-advised attempt to sew together disparate body parts from different sources. As the Modified Adversarial System becomes operational over the next few years, which one it is will become apparent.
The new Modified Adversarial System is characterized by three major changes. The first is that the trial judge will become, to use a sports analogy, more of a referee and less of a player. Article 161 of the Code of Criminal Procedure has been amended to place the responsibility for moving the prosecution forward on the prosecutor rather than on the judge as was the case under the old system. One of the major complaints raised by both human- rights advocates and legal reformers against the previous system was that the judge for all intents and purposes served as prosecutor, judge, and jury all rolled into one. The judge called and questioned the witnesses, decided what physical evidence to consider, and made the final determination of guilt or innocence.
Although in theory it might be possible for a judge of great wisdom and strength of character, perhaps one like King Solomon or Judge Pao, to play the roles of both prosecutor and judge simultaneously, as a practical matter it is hard to both "play the game" and be an objective referee. The new Modified Adversarial System's major advantage, according to the Judicial Yuan, is that the judges will be more neutral and better able to focus their attention on weighing the facts rather than dividing their attention between moving the case forward and trying to determine guilt or innocence.
Local attorneys and judges seem to share the appreciation felt by Joseph K., the defendant in Kafka's The Trial, regarding the presence of the prosecutor. ("Gradually many obscurities were cleared up, for he had a helpful counselor by his side in the person of Hasterer, the prosecuting counsel.") In polls of the domestic legal community, the great majority of judges and attorneys have favored relying on the prosecutor to present the case, as it tends to speed up the trial considerably. Shifting the duty to the prosecutor of questioning the witnesses, presenting physical evidence, and making the arguments for a finding of guilt is the second major change that the Modified Adversarial System will bring.
Under the old system, prosecutors were the "invisible people" of the criminal justice system. They would put in brief cameo appearances at the start and end of criminal trials to utter a single stock line: "Your honor, please find in accordance with the indictment." This will end under the new system, but therein lies the main practical administrative problem with the change. Prosecutors in Taiwan carry the primary responsibility for the investigation of criminal cases. The police investigation is normally quite "bare bones," and it falls to the prosecutors to conduct the bulk of the witness interviews and then prepare what is usually a lengthy dossier on the case to present to the judge. Most of the typical prosecutor's day is taken up with conducting investigations. As it stands now, Taiwan has barely enough prosecutors to handle the investigative duties. The administrative problem with the Modified Adversarial System is that now, in addition to those duties, the prosecutors must also conduct the trials. Unless the number of prosecutors is doubled, the system will not function. But there has been no initiative toward doubling the number of prosecutors in Taiwan.
Vigorous cross examination that breaks down a lying witness is a stock motif in movies and television. And as John Wigmore stated, cross examination is viewed, at least in the adversarial system, as an important litmus test for truth. Cross examination has always been permissible in the Taiwanese trial system, but allowing it was within the judge's discretion. As a practical matter permission to cross examine witnesses was rarely requested, and when requested, rarely granted. The defense attorney's primary role under the old system was simply to deliver a closing argument; handling the witnesses was the purview of the judge.
Interest in increasing the role of cross examination began in the late 1990s, primarily through the work of local attorney Calvin Tsai, who published a number of seminal articles in both the legal and popular press on the advantages of cross examination. The idea caught on, and various local bar associations and the MOJ began to host training programs to teach the art of cross examination. Expanding the scope of cross examination became a central part of the new Modified Adversarial System.
Taiwan's new trial system is identical to neither the American nor British system. The fundamental difference is that under the new Article 163 of the Code of Criminal Procedure, the judge retains the authority to take over the presentation of the case, thus reverting to the "old way" of doing things if he so chooses. What Articles 161 and 163 do, when read together, is permit trial judges to run their criminal courtroom using either an adversarial or an inquisitorial approach. It is an attempt to satisfy both the conservative and progressive voices in the legal community. Many commentators fear that a trial system that can flip back and forth between being adversarial and inquisitorial in design is a mistake. Other commentators view it as a necessary bow to political realities.
The Modified Adversarial System is an attempt to create a unique trial system for Taiwan, a trial system that will balance both individual civil rights and public safety. It is an effort to provide fundamental fairness while expediting trials to save court resources and taxpayer revenue. Striking these delicate balances is the goal of the Modified Adversarial System, bringing LA Law to Taiwan.
Brian Kennedy, an American attorney resident in Taiwan, writes and teaches on criminal justice and human-rights issues.
Copyright (c) 2002 by Brian Kennedy.