"It was a dreary night in November that I beheld the accomplishment of my toils ... I beheld the wretch-the miserable monster whom I had created." These words of Dr Frankenstein, from Mary Shelley's horror classic, would at first glance seem to have little to do with the topic of legal reform. But that is not true however. The story of Dr Frankenstein has a very important and often overlooked moral which legal reformers would do well to remember.
This moral is brought to mind by an article by Irene Lin ("First step in judicial reform moving in hopeful direction," July 6th, Page 3). Lin did a fine job of analyzing a number of practical problems as well as the successes of the experiments taking place in Miaoli
Practically speaking, what this means is two basic changes. The first is that prosecutors, who normally are the "Invisible People" of criminal trials, are now required to be present at criminal trials. The second is that the attorneys and prosecutors handle more of the witness examination, primarily cross examinations.
All of this is fine. My fear however is that Taiwan is in the process of creating a Frankenstein like monster in the name of legal reform. The thing that made Frankenstein's creation a monster was the fact that it was created from parts of different corpses and those parts did not have what one might term a "natural harmony." As a result, when the creature came to life it ran amuck. The public viewed it as a horrible, dangerous freak. Eventually it had to be hunted down and killed.
What I call the Frankenstein moral is this: when creating something new, out of parts from different places, make sure the parts are going to work correctly when put together. Otherwise you are courting disaster.
Currently Taiwan has what amounts to an old version of the German trial system, which is inquisitorial in design. By that is meant that the system is judge centered. Judges, in these systems, are combined investi-gators, prosecutors, judge and jury. The US system, which for better or worse seems to have captured the heart of many local attorneys, is adversarial in design. Adversarial systems are attorney centered.
The attorneys are responsible for presenting their cases and the judge's duty consists of making legal rulings and rendering the verdicts.
The adversarial and inquisitorial systems are in theory completely incompatible and from a practical procedural standpoint very difficult to merge. Such a merger, however, is what is being attempted here in Taiwan. The direction that Taiwanese legal reform is currently taking is an attempt to create a hybrid system that is part German and part American. This is a mistake. I greatly fear that Taiwan will end up with a Frankenstein like hybrid legal system.
A fundamental decision needs to be made. Does Taiwan want an inquisitorial or an adversarial system? I realize that from a political standpoint it is always easier to sidestep the fundamental issue and proceed with some compromise, some hybrid solutions. That in fact is what has been done in the area of legal reform. But there is a danger in that. Everyone's hopes are high that a hybrid legal system will bring about legal reform and modernization.
However, Frankenstein had high hopes too.
Brian Kennedy is an attorney who writes and teaches on criminal justice and human rights issues.
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