According to recent newspaper reports, Waterland Securities Co board director Tsai Chin-wen (蔡清文) and Kuan-Pin Co general manager Yu Shih-yi (游世一) -- two of the main suspects in the Taiwan Development Corp (TDC) insider trading scandal -- are trying to become "tainted witnesses," that is suspects that become witnesses for prosecutors. Although the term in itself does not exist in Taiwanese law, the expression derives from the Witness Protection Act (證人保護法).
According to Article 14 of that law, such a witness must be a "defendant" or "suspect" who has committed or allegedly committed certain criminal offenses. Because the witness is a defendant or a suspect in a case, he or she is referred to as tainted. Many of these offenses are set forth in Article 2 of the law, and they include offenses punishable by three years or more in prison, such as corruption, possession of firearms, serious violations to the Public Official Election and Recall Act (公職人員選舉罷免法), money laundering and insider trading. Most of the offenses are linked to organized crime.
Witnesses that meet the requirements of the law may have their sentences reduced or be completely exempted. This is certainly a great incentive. Take, for example, a witness who has committed a crime punishable by five or more years in prison. If the punishment is reduced by two-thirds, he or she may receive a sentence of less than two years, which would raise the possibility of a suspended sentence.
If the suspended sentence is not retracted, the witness will have no criminal record at the end of the sentencing period. That is a powerful incentive.
Meanwhile, from the perspective of an investigation, criminal evidence provided by tainted witnesses against accomplices is valuable, especially when other evidence is unclear, or there is no direct evidence.
If the prosecutor has a lot of disparate, indirect information, insufficient to put together a clear crime process -- as in the recent high-profile derailment case -- any evidence that can connect indirect evidence is significant. This is the time to consider using sentence reduction or exemption to convince a defendant or suspect to act as a tainted witness.
The value of tainted witnesses is demonstrated by the scandal involving Sophie Yeh (
Unfortunately, the loans, totalling more than NT$7 billion (US$227 million), are still missing. Newspapers also reported that prosecutors reduced Chiu's punishment and he was given a suspended sentence.
More than 60 years ago, mathematicians developed game theory as a way to discuss strategic behavior. The most typical and simplest example is the Prisoner's Dilemma, which asks if two prisoners will cooperate to minimize their losses, or if one will betray the other to go free.
For example, two suspects are arrested and interrogated separately. The prosecutor tells each of them, "If neither of you confesses, you'll both get six months in jail. But if you confess and implicate the other prisoner, you'll go free and he will get five years in jail. If you both confess and implicate each other, you'll each get two years in jail."
Each prisoner then has to speculate on what the other will do, and each will soon realize that they can't trust the other prisoner, and so the safest course is to confess -- even though the prisoners' sentence would be lighter if they were able to cooperate and not confess.
In modern criminal law, "tainted witnesses" and "plea bargaining" most clearly embody the spirit of game theory.
Some may think that it is unfair and unjust to grant tainted witnesses such favors. However, we cannot ignore "cost effectiveness" in the pursuit of equity and justice. From the perspective of economic analysis, efficiency is often an index of justice. If reducing or exempting one or several accomplices from a penalty can result in the uncovering of more or bigger crimes, such a deal is still a bargain.
I believe that each piece of evidence comes at a cost. A prosecutor should thus maximize benefits by using the lowest cost to obtain an appropriate sentence. Naturally, there may sometimes be suspicions that a tainted witness has been given too good a deal.
For example, in a vote-buying case, the prosecutor made tainted witnesses of nine suspects from the blue, green, orange and independent camps who had all admitted to having accepted bribes. In my opinion, choosing one witness from each political camp might have been enough, and the others may have been given too good a deal. Still, just like with the Prisoner's Dilemma, prosecutors are faced with a dilemma when gathering evidence.
Since the promulgation and enforcement of the Witness Protection Act on Feb. 9, 2000, the law has only been applicable to two of the hundreds of cases I have handled since then. One involved organized crime, and the other involved a sex business run by the defendant together with police. It seems prosecutors do not apply the law often. This is a good thing, showing most prosecutors collect evidence thoroughly without the need to offer penalty reduction or exemption to break a case.
How wide is the scope of the TDC scandal and other corruption cases? The answer to that question will depend on the contribution of tainted witnesses.
Lin Chien-ho is a public defender at the Hsinchu District Court.
Translated by Eddy Chang
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