"Gradually many obscurities were cleared up, for he had a helpful counselor by his side in the person of Hasterer, the prosecuting counsel." Local attorneys and judges seem to share Joseph K.'s, the defendant in Kafka's The Trial, appreciation in having the presence of prosecuting counsel. That was one of the conclusions of a newly released survey conducted by the Judicial Reform Foundation. The survey involves two judicial districts -- Miaoli and Shihlin -- which over the past six months have had in place an experimental trial system.
The experiment involves two major elements: the physical presence of a prosecutor during the course of trial and an expanded role for cross examination. Neither of these new elements is "new;" Taiwan's criminal procedure has always allowed for cross examination and for the presence of prosecutors.
As a matter of practice however neither one ever occurred with any frequency. The "new" procedures are an attempt to bring those two elements into more common usage and allow the trial judge to step back from the actual conduct of the trials in order that they may at least give the appearance of being objective. If this sounds like a move toward the Anglo-American system, it is. Taiwan's criminal justice system, for better or worse, is looking more and more like the US'.
The reason this experiment matters is the fact that it will next be expanded to Taipei's main judicial district and then within a year expanded to the entire island. Thus the problems that the experiment has in Miaoli and Shihlin will, unless they are rectified, soon be problems nationwide.
The JRF survey, which was only conducted among members of the Taipei Bar, for reasons unknown it did not include a member of the Miaoli Bar, pointed out both positive and problematic aspects of the new approach. In all modesty I did predict the same problems. I often wish I could predict horse races with the same accuracy I predict blunders in the Taiwanese criminal justice system.
The positive news is that the presence of the prosecutors has been a considerable help with the efficiency of the proceedings and the completeness of the fact finding. The trial prosecutors scored well on the survey with an overall score of 74 percent. The private bar did less well with a score of 66 percent. Judges were in the middle with a 70 percent score overall. The problems fall into two major categories: administrative process and problems with the indigent defense system.
Turning first to the administrative problems the major one involves the trial record. There are no transcripts in Taiwanese criminal proceedings, nor are the proceedings tape recorded. The court record consists of notes, a kind of brief synopsis, which the trial judge orders the clerk to write. It is nothing close to the word for word record made in US criminal courts.
The excuse the Judicial Yuan puts forward for this is that transcripts or audio taping cost too much. I find that hard to believe. Now on the face of it this would seem to be a mundane matter that has little impact and is easy to remedy. It is a mundane matter but it can have a great impact. The failure to record accurately and fully the testimony of witnesses has become a major problem in the Hsihchi Trio case. As this newspaper pointed out, "While the opening of a retrial has breathed life to the nine-year-old Hsichih Trio case, the proceedings have encountered frequent difficulties in getting witnesses to recall past events." That problem could be largely remedied by taping or transcripts. It is time for the Judicial Yuan to deal intelligently with this problem.
Turning to the second major problem area, the indigent defense system, it is obvious that major changes need to be made. As the survey pointed out, a large number of criminal defendants represent themselves or have some non-attorney represent them.
In an odd quirk of Taiwanese jurisprudence, trial judges can allow non-attorneys to represent people in court. Both these practices must end if the new criminal procedures are to work, since the new procedures give a much more adversarial flavor to trials. The solution to this is to have operational a working system of indigent criminal defense. Such systems take two forms: either a Public Defenders office or an Indigent Defense Board, which is an organization that handles court appointment of attorneys. Taiwan has an anemic version of both of these systems. Neither current version is anywhere near being adequate.
The Public Defenders system suffers from a lack of resources and a horrendous caseload. The Court appointed system suffers from a lack of skilled defense attorneys and inadequate fees. No serious steps have been taken to remedy either problem. As a result the quality of indigent defense is extremely poor. The average indigent defendant is perhaps better off having their grandmother or a noodle vendor represent them. They won't be any worse off.
Blame for this situation rests jointly between the Judicial Yuan's indifference and the Taipei Bar Association's combination of greed and indifference. All of these problems can be addressed and should be addressed before the new criminal procedures are put in place across Taiwan.
The Judicial Reform Foundation is to be commended in conducting this survey and bringing to light the problems. Problems are easier to solve on the small scale than they are on the large. Taiwan's criminal justice system would do well to solve these problems rather than simply lurching forward with judicial "reform."
Brian Kennedy is an attorney who writes and teaches on criminal justice and human rights issues.
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