Taipei Times: Why has the Judicial Yuan insisted on amending the Code of Criminal Procedure?
Tsay Ching-you (
Studies show that over 12 percent of indictments result in not-guilty verdicts. The same figure for corruption charges stands at higher than 40 percent. The statistics show a want of caution and prudence by prosecutors. Eager to turn cases over to judges, some prosecutors falsely claim that suspects have confessed to their guilt when in fact they haven't.
Others base their cases solely on the suspects' confessions when existing rules make it clear that a confession alone does not merit prosecution. Still others cloak their indictments in loose, speculative accusations.
To tackle the problem, we propose amending Article 161 to enable judges to offer prosecutors a limited period of time to offer additional evidence. If they fail to do so, the judge may dismiss the case, and prosecutors may not bring up the same case again. As for the length of this period, it would vary depending on the complexity the case. Judges would use this power sparingly.
Under present rules, a judge has no choice but to acquit the defendant when evidence available fails to meet the "beyond reasonable doubt" test. The prosecutor, if unconvinced, may then appeal the decision all the way to the Supreme Court, a process that may take the defendant three years before becoming free from the legal entanglement. By then, the defendant would probably have become penniless, not to mention the emotional distress they would have gone through. It is a desire to prevent such tragedies that has prompted us to seek a check on prosecutors.
TT: What is the debate over the "adversarial" versus "inquisitive" systems about?
Tsay: To ensure a fair trial, we believe it is important that prosecutors shoulder the lion's share of responsibility for proving a defendant's guilt. Judges should play only a supplementary role in the investigation of evidence. That is why we propose replacing the word "should" with "may" in Article 163 concerning the duty of a judge in the investigation of evidence. In this way, he may act as an objective listener during the trial.
With this change, it will be the exception, rather than the rule, for a judge to investigate evidence. Concerns that judges act as both player and referee would ease. It is true that we have borrowed the idea from the US adversarial system where the judge controls the courtroom but not the trial. He is impartial, passive, and restricted to the sidelines unless the situation calls for his intervention.
Under the present inquisitive system, the judge is obligated to inquire after the facts before reaching a verdict, prompting lazy prosecutors to pass the burden of proof onto the judge and skip trial proceedings. The practice has led critics to call judge's neutrality into question. They note that since the judge has to take over the unfinished job of the prosecutor, he most likely will uphold the findings of his colleague.
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