"The King is not bound to answer the particular endings of his soldiers; for they purpose not their deaths when they propose their services."
That musing from Shakespeare's Henry V comes to mind when considering the recent debate over prosecutorial discretion and responsibility. The latest version of this long-running debate was triggered by Minister of Justice Chen Ding-nan's
My first comment on this episode is that it reflects a perennial problem with Chen; he starts talking before he starts thinking. It is a version of foot-in-mouth disease in which a senior public official is apparently unable to keep his mouth shut in public. Rather than say nothing, officials will say something idiotic, something that publicly displays their lack of knowledge of the area for which they are responsible. Chen needs to seek a cure for his case of foot-in-mouth.
His comments triggered considerable discussion, both within the ministry and in the media. Laying aside the issue of Chen's inability to control his tongue, let us turn to the core issue -- prosecutorial discretion and responsibility. The China Times ran an editorial that called for the establishment of prosecution guidelines and standards. I very much agree with that.
The issue of prosecution standards for charging suspects needs to be addressed. The standards need to be clear, flexible and transparent. In California, prosecutors rely on the Uniform Crime Charging Standards which are issued by the statewide prosecutors association.
These standards are not legally binding but they are considered authoritative. They are sets of principles, not rules. I draw that distinction because Taiwan's criminal justice system is obsessed with rules, a result of the fundamentally bureaucratic nature of the system here. The Californian standards lay out principles that are used to inform and shape judgment. Individual judgment on the part of the charging prosecutor is still the key factor.
Such standards, which Taiwan needs to develop, should address several areas. The first is evidentiary sufficiency -- how much evidence you need and how strong it needs to be, before you charge. There exists some confusion over the issue of evidentiary sufficiency, as is made clear by Chen's public confusion. The standards also need to make clear the internal procedures that will be followed concerning review of charging decisions. Whether a supervisor has the right to change the charging decision of a lower ranked prosecutor has long been an unresolved issue. These prosecution standards need to make clear also what is an improper basis for charging crimes, such as public or journalistic pressure to charge or the mere fact of a request to charge by a public agency, private citizen or public official, or to assist or impede the efforts of any candidate or prospective candidate for elected or appointed office.
Such standards will provide a firm and clear basis for charging decisions while allowing the necessary discretion. The propriety of a decision will be far easier to judge. Adherence to such standards, not whether the decision resulted in a conviction or not, would be the criteria by which to judge a prosecutor's decision. That is an entirely different set of criteria and an improper one. With such standards in place each "soldier" could "answer the particular endings" of their prosecutions.
Brian Kennedy is an attorney who writes and teaches on criminal justice and human rights issues.
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